Do you get more “justice” through litigation or mediation?

lady.justice

When you have a conflict or dispute that you can’t resolve on your own, where do you go?  You want to take your problem to a place where you can speak and be heard, a place where you can be assured that justice will be administered, a place where your problem can be solved once and for all.  Most people think a courtroom is the best place to do this. However, you might be surprised to learn here that a mediator and a mediation  conference can actually administer more justice than a judge or jury in court.

What do you expect from Lady Justice?

Did you ever stop to consider, what does it really mean to administer justice?   Start by examining Lady Justice, the symbol for justice.  She is blindfolded carrying a scale and a sword.   What does this all mean?   Let’s compare and contrast just how well our modern day judges, juries and mediators really work to resolve our modern day conflicts and disputes.  Then you decide, who does it better.

Objectivity and Impartiality

The blindfold represents impartiality or objectivity, two things that are sorely lacking when conflict and disputes occur, two things that a good mediator is trained and legally required to bring to the dispute resolution process.  In fact, you might actually get more objectivity and impartiality from a mediator at mediation than a judge because, unlike a trial, the whole mediation process is confidential.  No mediator, unlike a judge, need worry about public appearances, pressure or any other outside influences which could restrict or sway their impartiality or objectivity.

Weighing of Evidence

Next is the scale or balance – the weighing of evidence.   Good mediators are trained and very comfortable looking at the evidence and  theories presented by both sides and will routinely challenge all parties to see how well their case might stand up to logic, common sense, or even some basic rules of admissibility or relevance.   Mediators are allowed to examine and weigh a lot more things than a judge or jury can.  In mediation, parties can place on the scale, any items that might be personally relevant to them to try to resolve a specific dispute. This often includes items which would never otherwise be allowed to be introduced or ever considered in court.

Off with their Heads

Finally, there is the sword, or more specifically, the unsheathed sword, the symbol for power, punishment and enforcement.   I would call this the “off with their heads” or swift justice component.  When is comes to civil litigation, justice is anything but swift.   Civil judgments are not a guarantee of either finality or performance.   There is no debtors’ prison in the United States, and there is usually almost always a right of appeal. Mediation, on the other hand, if successful, usually ends with a legally enforceable consensual agreement which likely will contain specific new incentives and penalties within it to help insure performance and limit any rights of appeal which would otherwise remain unresolved and at risk within a judgment entered in court.

So where is justice best served?

Based on the preceding analysis, it would appear that mediators and mediation conferences may actually administer justice better than the court system.   However, the most compelling reason to mediate instead of litigate is the fact that lawsuits rarely, if ever, administer any justice.  The court system huffs and puffs along but almost always fall short of finishing the job.  Imagine for a moment if courts were judged for quality and efficiency just like a factory.  You file a lawsuit, you place it on the production line and then you watch and you wait as lawyers and judges argue and cajole to try to assemble a case and output a judgment.  You might be very surprised to learn just how little is accomplished in court and just how much time and money is wasted in the process Read more.

 

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Litigation is one of the most in-efficient processes left on earth.

factory

Imagine for a moment if courts were really held accountable to efficiently resolve disputes just like factories were responsible to produce goods.  You file a lawsuit, place it on the court’s production line then and then watch lawyers and judges work to assemble a case, complete a trial and output a judgment to resolve your dispute.   What you would find is that litigation is one of the most in-efficient processes left on earth.

More than 95% of all cases are never finished in court.

Courts rarely assemble any trials or produce any resolutions to any of the cases that enter their “factory.”  Reporting from state and federal courts from across the United States show that courts only try and decide less than 5% of all cases filed.   In other words, the overwhelming 95% majority of cases leave the court system without a finished product.

Costs of production are not recoverable.

Then let’s consider the cost people have been paying the legal system to try to resolve their disputes.  It is estimated that the average cost of civil litigation in the United States (largely attorney fees) ranges between $43,000 and $122,000.  People have to pay these legal fees and costs regardless of whether their cases are ever tried and decided in court.  Its just the price you pay in the United States to try to resolve conflict and disputes in court.  In most situations, legal fees are not recoverable in court. Read more.

For every single case that is finished in court, more than 1MM is spent on cases that are never tried.

Perhaps an even more alarming fact to consider about the legal factory is how much money is spent on lawsuits that are never even tried or decided in court.  On average, plaintiffs and defendants are spending over 1MM in attorney fees on the estimated 19 out of every 20 cases filed that never get to trial.

With this much waste and unfinished business, why would anyone in their right mind continue to rely on traditional litigation to try to solve their disputes?  Isn’t there any other more efficient, more effective way to resolve disputes?  Didn’t anyone ever suggest trying mediation?

There can be no agreement absent a fair exchange of trust between both sides.

trust-fall

Trust is the most fundamental building block for every agreement and every relationship. Trust is the magnet that draws people together and it is the glue that holds things together. Once a dispute occurs, disappointment, anger and fear set in.  Trust between the parties is then often broken or lost. People stop talking to one another.  Patience has run out.  No one is willing to constructively find a way to confront and resolve the situation.  Everything grinds to a halt. Paralysis results.  The only way to cure the paralysis it is to figure out a way to restore trust.  Most people don’t figure out how they could ever trust one another again and instead just file suit.

Litigation builds walls between people and leaves no room for trust.

You can hire a lawyer to seek a judgment or determinations from a court exactly what are your legal rights and obligations; but, that still doesn’t resolve the dispute.  In the end, litigation doesn’t resolve disputes, only the people do.   Lawsuits provide little or no opportunities for the parties to communicate freely or re-establish any trust to work towards an agreement. Litigation builds walls between people.  Litigation alone is an “isolationist” strategy proven time and time again to fall short of resolving anything. More than 19 out of every 20 lawsuits filed throughout the United states are later dismissed before anything is decided.

You need a safe zone with confidential channels to communicate and rebuild trust.

Almost all disputes are eventually resolved out of court by negotiation and private agreement.  Its just a fact, sooner or later, you will end up in a settlement negotiation and when you do, you will realize that at least some reduced level of trust must again be re-introduced to fill in the gaps and uncertainty that no lawyer, judge or jury can guarantee or fill.   If you place this trust in a mediator during a confidential mediation conference, you won’t have to take a second leap of faith. You will be able to ask questions, communicate, analyze and make a much more informed decision without the fear or pressure or other influences which may have impeded your decision-making when you decided to enter into the failed agreement or relationship in the first place.

Trust in the mediation process.

No one wants to sue, be sued or remain in a lawsuit for any longer than is absolutely necessary to resolve the dispute.  The sooner you decide to trust in the mediation process, the sooner you can get the facts, not only about your case but also about the other party’s situation.  The sooner you trust in the mediation process, the sooner you’ll be able to understand all your settlement options.  The sooner you trust in the mediation process, the sooner you will be able take control of the situation and end it in the most favorable way possible.

When it comes to resolving disputes, its never a good idea to be too full of yourself.

full of yourself

A lot of lawsuits are filed and pursued much longer than they need to be simply because people are naive and overconfident. Confidence can be an intoxicating drug that people crave to make them feel better about their situation.   However, when it comes to trying to settle a difficult conflict or dispute out of court,  it’s never a good idea to be too full of yourself.

Why you don’t want to deal with this guy.

Exaggeration, arrogance and conceit usually find their way into most lawsuits but they are NOT welcome additions to any settlement negotiation.   Does anyone really want to try to negotiate with a guy who is unwilling to listen, unwilling to hear or consider anyone else’s views or interest other than their own?  If you are forced into a negotiation with this guy, do you think you would be more or less likely to have a meaning discussion or make compromises?   MUCH LESS LIKELY.

Why you don’t want to be this guy.

Don’t distract me with the facts.  I’m not listening and I am not interested in what you have to say.   These are all signs of a closed mind.  If that’s your style of trying to settle a dispute, then you are negotiating in the dark.  You won’t be able to see or take advantage of new information presented by the other parties that you might be able to use to your advantage.  You won’t recognize cues to indicate what, how much or how little to offer to move the other party closer to an agreement.   This all results in negotiation mistakes and lost settlement opportunities.  LIKELY RESULT:  You will accept too little or pay too much.

Mediators keep the parties, the lawyers and the dispute resolution process honest.

emperor-has-no-clothes

Emperor’s New Clothes is an old children’s story by Hans Christian Andersen about an emperor who pays a lot of money for some new magic clothes which can only be seen by wise people. The clothes do not really exist, but the emperor does not admit he cannot see them, because he does not want to seem stupid. Everyone else pretends to see the clothes too, until a child shouts, “The Emperor has no clothes on!” The title is often used to describe a situation in which people are afraid to criticize something because everyone else seems to think it is good or right.

Bias and bravado cause litigants and their lawyers to overlook or underestimate what is missing to prove and win a lawsuit.

You can pay a lot of money to confident lawyers who might tell you what you want to hear and promise to go to the ends of the earth to try to prove your version of a controversy or dispute. However, you should rely on a lot more than just a confident lawyer when deciding how to settle a personal family matter or a business dispute.  Sometimes, it takes a “child” eyed view from someone unbiased, unaffected or afraid to cry out the obvious, and objectively point out the challenges, flaws and missing pieces in both plaintiff’s and defendant’s views of their case.  A mediator’s observations give everyone involved, a unique opportunity to see their case from a new perspective.  Mediators are neutral and they are not afraid to ask tough, critical questions, questions that if left unanswered might leave one or both sides with false impressions, faulty logic and a foolhardy desire to unnecessarily protract the litigation.

It’s not compromise when you decide to give up something you never had.

People file and defend lawsuits based on their beliefs.  However, beliefs, without more, are worthless in court.  Lawsuits are won and lost based on laws and facts. No one wants to admit that they might not be able to prove their claims or defenses in court.  Although it may hurt to admit this, the pain is not caused by compromise, rather its caused by common sense enlightenment.   The pain gets worse if a party  waits to be called out in public by a judge or jury after parading around for months or years in a lawsuit wearing “magic clothes.”   Don’t wait for this to happen.  Instead, engage a mediator to confidentially try to help everyone get the best deal possible under the circumstances.

The mediation process empowers the parties to become more enlightened “Emperors.”

Knowledge is power.  In an adversarial lawsuit, knowledge is NOT easy to come by.   Parties share as little information as possible because what is said might be presented to and used against them by the ultimate decision-maker, the judge or jury.  You never get the full story in court, you only get as much knowledge as the opposing party chooses and is forced to disclose.  In mediation, however, the pressure is off.   Mediators are not the decision-makers.  Mediators are legally required to treat your discussions with them as confidential.  What is said in mediation stays in mediation.  As such, confiding in a mediator can’t hurt you.  To the contrary, mediators can only help, especially when provided with reasonable confidential knowledge from both sides.   Mediators can then see the extent to which both sides are relying on some “magic clothes”  putting mediators in a unique position to help tactfully guide the negotiations while still preserving all confidential information.  Learn more.

 

 

When you are trying to settle a lawsuit, don’t lose sight of the elephant in the room.

ELEPHANT-IN-THE-ROOM-1

Its not easy to find or part with the money often needed settle a lawsuit or dispute.   You might think that your toughest negotiations will be with the opposing party.  However, there is often an even larger stakeholder in the dispute; someone on your own side; someone who will likely have to be paid first from whatever proceeds are generated upon resolution of the lawsuit; someone who you might have already agreed to pay more to fight this dispute than you could ever reasonably expect to recover in court.

The American rule of damages

If you are not careful, the biggest damage and expense that you will incur as a result of a conflict or dispute will be unrecoverable attorney fees.  The American rule of damages provides that each party to a lawsuit is responsible for paying their own attorney’s fees, unless there is a specific statute or contract that allows the assessment of those fees against the other party.  In other words, when it comes to litigation, everyone is usually left to pay their own legal bill.   In the United States, the average cost (bill) to try a civil lawsuit is between $43,000 and $122,000.  The single most time intensive (expensive) parts of litigation are the trial and discovery (taking depositions, etc.).    Why does it cost so much? …because everything is a fight.  There are faster, less expensive secure ways to cut to the chase and get the bottom of things without relying so heavily on litigation.

That’s your elephant, not mine.

Its plain to see that resolving disputes can be an expensive proposition, especially if you want a lawyer and the court system to try to resolve your disputes for you. More people need to think twice before racing to court to determine just how much good money to invest on a bad agreement or relationship.  Considering the backlog of cases that continue to flood into the court system, a lot of people must be convinced that litigation is still the best place to start.   However, sooner or later, almost all of them will learn the hard way that less than 5% of all lawsuits actually get to trial. Most lawsuits are dismissed and left to be settled out of court. Every day frustrated people leave the legal system without a trial, without a resolution and now deeper in debt to their own attorney.  If and when these people do finally decide to sit down and try to negotiate a settlement out of court, they will have a tough time trying to persuade the other party to pay more or accept less simply because they chose to spent a lot of money on unrecoverable attorney fees.  That’s your elephant not mine.

Due process or do more yourself ?

I don’t think so many people would sue or choose to remain in a lawsuit so long if they understood that it would cost more to sue than they could legally expect to recover in the end.   However, if its too expensive to sue or be sued,  does that mean that a lot of people with legal problems to resolve are then effectively left without a legal remedy?   No, this is simply a clear indication that litigation is the wrong place to start.  The legal system provides many other less expensive (and lesser known) processes to resolve disputes outside the courtroom.   Its time more people gave these other legal processes their due first.  Mediation is a legal process designed to resolve disputes privately rather than before a judge or jury. Mediation can be completed for a fraction of the time and cost of litigation. On average, more than 75% of disputes that were mediated were resolved at mediation.   So, when you are sued or you sue someone else, don’t lose sight of the elephants in the room. Take a little more control over your situation and try mediation sooner vs later.

Mediation provides for the safe and secure use of confidential information to resolve lawsuits and disputes.

privilege1

I doubt whether anyone has a legal right to keep their garbage confidential. However, there are a couple of real legal rights of confidentiality that you should know about any time you face a legal dispute.   If you hire an attorney, your conversations with your attorney are confidential.  That’s called the attorney-client privilege.   Did you know that there is another legal right of confidentiality that will keep a lot more communications confidential than just those you have with your own attorney?

In mediation, you have the legal right to speak confidentially with not only your own attorney but also with the opposing parties and their attorneys.

The attorney-client privilege only causes people to do one thing, invest more time and more money pursuing litigation.  However, litigation rarely resolves anything and you won’t get very far along to resolve things out of court if you are only willing and able to speak with your own attorney.   You need to speak with the other parties to figure out what they are thinking and how they might propose to resolve the situation.  To do this you need some assurances and protection.  Everyone needs to be assured that whatever they say will not be used against them later.   Mediation and the mediation privilege does exactly that.  Its the legal right and obligation to keep all communications between everyone who attends a mediation conference confidential.

An ounce of trust placed in a good mediator is often worth more than a ton of litigation.

People are used to trusting their own attorneys and relying on them to get the information they want and need to decide how and when to resolve a lawsuit. However, your attorney can rarely get from the other side, the full story, not without a long, expensive discovery fight in court.   There is an easier way to get the facts and figures you need to try to decide how to settle a lawsuit. Imagine all the parties to the lawsuit assembled in a safe room.  Imagine a process unfolding in that safe room run by a neutral third party with no prior history or stake in the dispute.   Imagine placing your trust in this person knowing that they are legally required to keep everything you tell them confidential.   Imagine that this person could be trained to ask questions and speak privately with everyone to hear all sides of the case; the strengths, weaknesses, interests, priorities and fears of all parties.  Imagine that once this trustworthy neutral person acquires confidential information from both sides that they can use this “crystal ball” of knowledge to help both sides negotiate to get more of what they really want to settle the lawsuit out of court.  Just imagine…….better yet just mediate.

How to reconcile the forecasts held by plaintiffs and defendants in litigation.

spaghetti

It is uncertain what path hurricanes will take, how strong they may become, what areas will be impacted and what damage may result.   There are countless forecasts trying to predict exactly what will happen; however, only time will tell.   Trying to predict the path of hurricanes is a lot like trying to predict the outcome of a lawsuit. There are always a wide variety of estimates and disagreement over what a court might ultimately decide to award and it is such disagreement that leads people to file and foolishly pursue so many lawsuits in the first place. Plaintiffs overestimate what they think they can get and defendants underestimate their liability and exposure. Only time will tell.   Here are a couple of litigation facts and forecasts that you can rely upon with a reasonable degree of certainty; 1) in over 95% of lawsuits, the courts do not decide the case and 2) you should prepare to spend between $40,000 to $122,000 in legal fees and costs to go the distance for that 5% or less chance to get to trial.

Unlike hurricanes, you can control the path and outcome of lawsuits and disputes.

Unlike hurricanes, you can control the path and outcome of lawsuits.   You don’t have to wait and see what a court will do and you don’t have to rely on attorneys to try to extract information from a hostile adversary to determine what path to take.  Instead, you can ask the court to gather up all the parties in a room to confidentially discuss and try to work out a settlement under the direction of a trained mediator.   Mediators are neutral and are specially trained to look at all sides of a dispute. Mediators can then help to resolve and reconcile all the various opinions and interests. Mediators gather information, separate facts from fiction and help put everyone into a calmer, more informed mindset to make decisions. LEARN MORE.

Show your support of less litigation and more private resolution of conflicts and disputes.

Up to this point, mediation has remained largely a court-annexed process, meaning that lawyers and judges tend to decide if and when people mediate.  We think people should be able to decide for themselves.   If you agree, please comment and let us know. Visit our website, subscribe to our blog and follow us on Twitter.

 

Use mediators to escalate conflicts up to the point where everyone can make informed decisions.

escalate

Mediation is designed to bring people together, and keep them together long enough to engage in a meaningful discussion that is designed to escalate conflicts up to the point where informed decisions can and will be made faster on how to resolve the conflict privately out of court.

It’s never premature to ask the tough the questions.

Procrastination won’t solve lawsuits and disputes and, in most cases, neither will lawyers and judges.  More than 95% of all cases are settled out of court by a private negotiation. Mediators are often hired to quarterback these settlement negotiations.  They know how to ask everyone the tough questions to help lead both sides to gain a much clearer and faster understanding of opposing views and interests.

The goal of mediators is to restore communications and bring everyone to a point where they are able to make a decision.    A good mediator will review in detail, both the strengths and weaknesses of all sides to a case make sure everyone understand what outcomes are possible or impossible in court.  A good mediator should help formulate and present at least one or more out of court settlement proposals.   Done right, people leave mediation with no doubt that they accomplished more during a few hours in mediation than they could otherwise accomplish fighting for months if not years in an adversarial lawsuit.

You can choose the short route or the long and winding road. 

People naively believe that, once an agreement is broken, all communications must cease and everyone should now wait and rely on lawyers and judges to tell them when to speak, what to say and exactly how to say it.   However, you don’t have to wait.  Time is money. Cut to the chase.  Mediation enables everyone speak confidentially and to say exactly what they want and why.

Litigation is the long and winding road, a round-about way to get to the point. Mediation, on the other hand, is a short, focused, legally enforceable private conversation and negotiation that you can order at any time.  Mediation conferences are regularly conducted by trained professionals who are legally required to remain neutral and unbiased and to provide everyone with a fair, flexible, confidential opportunity to speak and be heard. Good mediators are proactive, creative, problem solvers and statistics show that most disputes that are mediated are settled at mediation.  READ MORE.   Even if your case is not settled at mediation, you’ll be a lot closer.   You should leave with a clear understanding what’s  possible, what’s  reasonable what to do next to move closer to an agreement.

Establish your leverage upfront. It can be very difficult and expensive to try to get it later.

leverage

The majority of civil lawsuits filed every year involve disputes over contracts.  The sad reality it that most of these cases leave the legal system before anything is resolved leaving the parties to resolve their disputes out of court.  In the end, the court system is too often reduced to nothing more than an expensive middleman to the dispute resolution process. So, I ask you, what purpose does litigation really serve to resolve any dispute?  Leverage.

How, when and where to get Leverage 

Without leverage its tough to get anyone to agree to anything.  People tend to rely upon lawsuits to create that leverage.  Its true, lawsuits do get peoples’ attention, they educate, they scare and they empower people. They also transform, for better and worse, the way people view their disputes. The irony of it all is that the leverage you get from a lawsuit almost always falls short of resolving the case. Statistics show that most people who file lawsuits later come to realize that they are almost always better off negotiating their own settlements out of court rather than relying on the court to have the final word to determine what they will recover.

Don’t Shoot First and Look for Leverage Later

You shouldn’t wait to file a lawsuit and rely upon the courts to gain the leverage needed to resolve disagreements.   Instead, take a little extra time upfront to clearly document in writing all the key terms and conditions of your agreement and leave as little as possible for interpretation.  In your agreement, give yourself one or more options how to handle disputes should they occur later. Establish upfront, that if a dispute later occurs, everyone agrees to clearly communicate the problem to one another and to try to resolve it privately before allowing anyone to file a lawsuit.  Too few people have the foresight to include such a private dispute resolution process in their agreements and they regret it later.  Once a dispute arises its usually too late to make any such arrangements.  The only option left is litigation and once that starts, it quickly builds up a head of steam and is not easy to stop.

Self-Determination

The best way to resolve any dispute is privately without lawyers, judges, mediators, arbitrators or any other third parties. However, its not easy or comfortable for most people to navigate through the anger, conflict and uncertainty surrounding a failed relationship, business deal or contract.
Mediation, as opposed to litigation, provides people with a supervised, non-threatening and confidential negotiation process where the parties, not the lawyers ultimately control the outcome of the dispute and that outcome is usually much more certain and final than any determination or ruling that could be entered in court.

Legal Fights Continue LONG after Trial

You’ve heard the expression, “you can lead a horse to water but you can’t make him drink?” That applies to a large extent to people and their disputes as well as horses. Just because a judge or jury makes a determination what someone is entitled to recover or obligated to pay, there still remains a potential legal battle to fight to enforce it.  Mediation, on the other hand, is a communication and negotiation process that is designed to help all parties formulate proposals and reach a final enforceable agreement that by the end of the mediation session, leaves no doubt that the fight is over.

So, establish the leverage you need upfront.  Clearly document your agreements in writing and include in your agreements the right and obligation to mediate any disputes first before taking them to court.  Visit  www.4disputes.com to learn more.