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?

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.

 

 

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.