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 evidence is yet to come when you look at just how few cases are ever actually completed in court.  Imagine for a moment if courts were judged for quality and efficiency just like a factory.  You file a lawsuit, place it on the production line and then watch and wait as lawyers and judges work to try to assemble a case, complete a trial and output a judgment.  You might be very surprised to learn just how little is produced in court and just how much time and money is wasted in the process Read more.

 

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