Mediation Versus Litigation?

There is inevitable conflict in life. One of the things that we learn as trial attorneys is to advocate for our clients. When I was a young trial attorney, my only goal was to win every case. I would try every case with no thought of ever settling. This was about being right and teaching my adversaries how they were wrong. They would never mess with me again. Thirty-seven years into my career, I see things differently. When I was a young lawyer, everything was black-and-white. Now all I see is gray. 

There will be scenarios where one party perceives that their adversary is simply trying to take advantage. There will be situations where a case cannot settle and must be tried.  A skilled mediator will work with the parties to understand the benefits of mediation.   But, in those instances where there can be no amicable resolution, each party will prepare to the best of their ability.  They prepare to win or lose. So, they review the evidence, prepare the client and present the case to the jury.  Then they pray.  

Most civil cases resolve before the case ever gets to the jury.  Statistics are hard to come by, but some estimates are that 90 – 95% of all civil cases resolve before trial. One article published by Duke Law School estimates that, in the Federal Court, less than 1% of all cases are resolved by a jury trial.  The percentage of cases resolved by judges in bench trials is even less.  In a system where up to 99% of the cases settle before they ever get to trial, attorneys and their clients should consider entering into mediation.  Even if a case does not resolve, in mediation, the parties get to present their case, learn their adversary’s arguments and get a neutral’s evaluation of the strengths and weaknesses of their case.  At a minimum, each side may learn the strengths and weaknesses of their own case as well as the strengths and weaknesses of their adversary’s case, and can be better prepared for trial.  

One of the things that parties fail to understand is that every dispute has a beginning, a middle and an end. At some point, the dispute will end whether by agreement, verdict, appeal, court order or something else.  Every dispute ends at some point.   Parties lose sight of this.  In some cases, during the course of litigation, parties may lose sight of why they were in litigation to begin with. The entire case becomes about winning, rather than reaching an agreement that works for both sides of the dispute.   

Also, parties fail to recognize that there is a cost to litigation both financial and emotional.  Litigation costs are comparatively higher than in arbitration and mediation costs.  Mediation costs are comparatively lower than those in arbitration and litigation.  

Litigation focuses on conflict, how we can demonize the other side in order to win.  Litigation focuses on blame.  Our litigation system is an adversarial system.  Mediation focuses on compromise, agreement and mutual benefit.  Transformative mediation focuses on empowerment and relationship building (or rebuilding).        

Mediation is more collaborative where litigation is more adversarial. As you get further and further into the litigation, the more adversarial the process becomes and the less control the parties have over the outcome of the dispute.  What parties fail to understand is that during the dispute, the parties are fully in control of all of the potential outcomes to that dispute.  They are free to negotiate in any way they see fit and free to resolve their dispute prior to getting an attorney and starting a lawsuit.  

Even throughout the lawsuit, the parties are still in control of the outcome. The parties are free to mediate the dispute and resolve the case before too much time, money and emotion is spent trying to win.  As the case moves further and further into the litigation cycle, as the parties get more emotionally and financially invested in the case, it may become harder and harder to resolve the case amicably. It may become harder to compromise. Party positions get solidified. The decision-makers are advised of the positions they are taking, and the parties get ready for a long battle.  It is only after hundreds of hours, and thousands of dollars are expended, that parties may start to look at whether or not there are better ways to handle the dispute.  People have difficulty backing off positions that have been previously set in stone.  A skilled mediator can sometimes get the parties past the “stuck” positions and back into conversation.  

Another issue the parties may fail to appreciate is that at some point during the course of the lawsuit, the resolution will be taken out of their hands and placed in the hands of a stranger. At some point the parties have no say in the outcome. Judges and jurors sometimes do not look at the proof the same way that the parties might.  The entire case may turn on a single piece of evidence.  At that point, one party is usually very happy and the other is disappointed and sad. There is inevitably the threat of an appeal as well as more time and more expense.

More on this next week.