As an Arizona employment and Arizona family law attorney, I have seen the negative impact of litigation on its participants. Though litigation is often necessary to pursue one’s rights, it has many disadvantages. In a nutshell, the litigation process is:
a) Time consuming – It is not unusual for litigation to take more than two years to complete – and significantly longer if either party appeals the trial court’s decision.
b) Emotionally draining and / or traumatizing — Without timely resolution, and with the added stress of litigation, the original pain or aggravation that brought the parties to Court compounds. Also, no matter what relationship the parties had prior to litigation, by trial, the rift between the parties is often irreparable.
c) Costly – Litigation is very expensive. A party may win their case but lose in terms of the impact on their bank account.
d) Uncertain – It has been said that every attorney has lost cases they should have won and won cases they should have lost. Litigation is too uncertain. To illustrate this point, I sometimes ask my clients whether they thought McDonalds was prepared for a 21 million dollar judgment for not adequately explaining that coffee is hot.
e) Rigid – Courts are restricted on how they can resolve matters. In the end, there is often a winner and a loser. Courts are not concerned with preserving relationships, protecting reputations through confidentiality agreements or even finding a compromise. There is often a better way that the law cannot address.
Mediation, on the other hand, offers a prompt, cost effective way for parties to resolve disputes, sometimes creatively, while preserving relationships.
Even thought the preceding points are well accepted as true, it is not unusual for one or both parties to a dispute to resist mediation.
For my part, I do my best to nudge parties toward mediation. While I have no problem successfully describing the many benefits of mediation to my own client, convincing the opposing counsel or party is an entirely different matter.
In the hope my experiences in persuading the wary to try mediation may help you, I recite below a typical conversation with someone resistant to mediation:
Me: Why don’t we mediate?
Opposing counsel: “My client does not want to pay for mediation.” (Most litigants do not have the option of free mediation).
Me: Hmmm. But your client does want to pay you another $50,000.00 to take this matter to trial in another year and risk losing?
OC: What can I tell you? My client cannot afford to pay.
Me: (Heavy sigh – by this time, I am irked) Have you ever heard the phrase “penny wise, pound foolish,” coined by author Robert Burton?
OC: No. I don’t read.
Me: The question is not whether you can afford to mediate, but whether you can afford not to mediate.
OC: I see your point. I agree that my client is just shortsighted. (Okay, the opposing counsel, never actually admits this). Still, the parties are too far apart for mediation to be useful.
Me: That is exactly why we need a good mediator. A mediator may help one or both parties determine if they are taking unreasonable position, or even help the parties come up with entirely new resolution ideas.
Even if it seems like a case will never settle, the parties owe it to themselves to give it a try. I have seen cases resolve in mediation where the parties were further apart than the Arizona Cardinals and a Super Bowl victory.
OC: Once again, you are right! (I am exercising creative license here). But, I think that we should wait until we are closer to trial and gathered more evidence.
Me: There is no reason to wait to try mediation – it is just a waste of time and money to put mediation off. A mediator does not determine right or wrong and does not need evidence to help parties reach resolution.
In fact, if I had it my way, companies and organizations would instigate mediation programs to resolve problems before lawyers have to get involved. I represent employees, and most of my clients would not have had to visit me had the employers dealt with the issue promptly and with respect, as they could with mediation.
Most cases do resolve before trial. But, without the aid of a mediator, settlement usually occurs on the proverbial steps of the courthouse, after most of the damage is done.
OC: Okay, with your undeniably brilliant argument, you have convinced me. If your client is willing to split the cost, I will encourage my client to agree to mediation!
There will likely come a day where most people will know the benefits of mediation, and parties to lawsuits may have no choice but to participate in mediation. Until then, spread your knowledge of mediation to the masses – with rare exception, it is worth everyone’s time and effort.
Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260