When I graduated from law school, I thought the litigation process was the only legitimate approach to resolving conflict. The theory being that both sides present their case to a neutral judge, offer their evidence, apply the law and voila – a fair result. The "gold" standard in conflict resolution. In theory that may be true, and this is what you are taught in law school since, after all, people hire lawyers to assist them in navigating the judicial process.
However, after litigating cases for over 30 years, I have come to see all the negative features of the litigation process and the costs involved that are not always understood or anticipated by the litigants at the outset of their case. These costs include exorbitant legal fees as well as the stress and emotional upset of having to go to court, attend depositions, deal with lawyers and find time during the work day to attend to all these requirements. Add to that the fact that the overwhelming majority of cases settle before actually going to trial anyway (upward of 95% of case), and you begin to scratch your head about why you decided to get involved in the litigation process in the first place or why it was allowed to drag out for so long.
There is an alternative to litigation, and that is mediation. Mediation involves selecting a third-party professional to meet with the parties to try and work out an amicable settlement. A mediator is usually a lawyer since they understand the law, but it can be any professional who has the skill set to be a good communicator and listener who has some familiarity with the subject matter at hand. Most lawyers who engage in mediation have attended courses and are familiar with the process. For instance, I have completed the course work necessary to be on the New Jersey Superior Court Roster of Mediators for Civil, General Equity and Probate Cases.
Of course, there is a big difference between litigation and mediation, but ultimately, they both ostensibly have the same objective: to arrive at a fair resolution of the dispute at hand – as the parties themselves define fairness. In mediation, I am able to develop a set of material facts and exchange documents in the course of several hours that would have taken six months to accomplish via the litigation process. The litigation process is inherently burdensome and encumbered by hundreds of rules and protocols. All that can be circumvented in the mediation process. This results in much lower legal fees and a narrowing of the real issues in the case that need to be addressed.
The final point I want to make is that mediation and litigation are not mutually exclusive approaches. It is possible to agree on a “time out” during the litigation to allow the parties to meet for mediation. Most judges will allow this. That comes with some risks since facts and disclosures may come out in mediation that a party may not want to happen, but nothing is without risk. On the plus side, the parties themselves can frame the issues and consider settlement positions that they themselves may perceive as being fair and satisfactory, whether their lawyers agree or not. If the parties settle during mediation, then a formal agreement can be drafted and signed dismissing the legal case. If not, the litigation process can go back into effect where it was left off.
Certain cases may not be amenable to mediation (for instance family matters involving domestic violence or cases involving criminal wrongdoing), but for the vast majority of civil cases, parties getting together to try and work out their differences amicably and in the spirit of compromise is usually always a positive and fruitful approach to consider.
It was Abraham Lincoln who once said:
“Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them that the nominal winner is often the real loser — in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”
I think we can all learn something from the wisdom of our 16th President!
John Lonsdorf Reply
Posted Jun 24, 2018 at 19:10:27
Great piece, Tony. I have been in business for 32+ years, and I have found litigation to be a losing proposition in every case — even when I “win.” I am currently involved in a commercial dispute, and we have agreed to undertake binding arbitration. I am hopeful that process will prove much more satisfactory.
Anthony Serra Reply
Posted Jun 25, 2018 at 06:00:15
Thanks for the comment John. Interesting, but corporations and high net worth people have been using alternate forms of dispute resolution for many years since they know the costs of litigating cases in the courts. It’s when “average” people get caught in the litigation process, not fully aware of alternative methods of resolving their claims, that I see the most harm. There is certainly a place for judicial intervention, but there are also alternatives in the appropriate cases. Thanks also for bringing up the concept of arbitration. It is a topic I plan to address shortly in an upcoming blog. You read my mind!
Anthony Serra Reply
Posted Jun 25, 2018 at 06:03:11
P.S., good luck with your arbitration.
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