by Madeleine Butterfield Bass, Esq.
That was the comment of a law professor to me when I discussed my desire to focus my practice on alternative dispute resolution. Ignoring the glaring and erroneous generalization, his sentiments sounded like a challenge to me. Sure, litigation can be exciting, challenging and rewarding. Litigation is the ‘thrill seeking’ side of the law. So, why would an attorney seek to resolve disputes in any other way? CONTROL!
Litigation is a wild ride, but ultimately, it’s the judge in the driver’s seat. A litigator can draw the map and explain why their way is the fastest, the most direct or the most scenic. They can even advocate off-road travel. But, in the end, the judge decides what route to take, what speed to go and when they arrive at their destination. The litigators and their clients are stuck in the back seat.
Mediation allows attorneys and their clients to take turns choosing the path and speed of the trip. If one side has a deadline and the other has a side trip they want to make, they can all work together to make it happen so that both sides get as close as possible to what they want and need out of the trip. This travel metaphor has probably reached the end of the road, so the following is a list of just some of the reasons why you should try mediation first for your next client’s dispute.
“The Principle of the Thing”
How many of us have heard that? Everyone has had clients who want to aggressively pursue litigation in a case that really doesn’t warrant it. I’ve had a client who wanted to fight a claim, even after I informed him that he would most likely spend more on legal fees than the amount of the suit! Usually those cases are all about the anger and feelings of being wronged. A court can not really ease those emotions, though admittedly, winning a healthy judgment can like vindication. A capable neutral, on the other hand, can help both sides to express those feelings and explain their respective positions. In many cases, the opportunity to be heard by the other side is sufficient to help the parties move past the roadblock and settle their matter quickly and fairly.
The Golden Egg
Another group of clients will come to you, convinced that once they win their case they’ll be able to retire on the settlement money. No matter how much you try to give them a reality check in the form of a well-informed estimate of the worth of the case, they won’t hear you. In this type of interaction, an attorney mediator can be a huge help to a litigator by giving the client an objective professional estimate of the value of a case and the likelihood of prevailing in court.
We frequently see clients who don’t understand that the wheels of justice can be very slow, indeed. During this time, they are calling for frequent updates on their case, running up their billable hours, and expecting you to make this the only thing on your desk. They don’t always understand that coordinating all the schedules of all of the parties to the action and all of the attorneys involved is often a major undertaking. Pretrial efforts are very calendar driven as well and often result in a lawsuit lasting for years. Suggesting that these people come to the table with a neutral may allow them to reach a settlement much sooner. While the prevailing party may end up settling for less than they might have received had they gone to trial, they have retained control over their dispute and saved much in time, costs and statutory interest.
In many disputes, particularly in business or in families, it is really in the parties’ best interest to resolve the issue without ruining the relationship for future interactions. Even if their interactions have already deteriorated considerably, it may be possible to settle the dispute and salvage the relationship, so long as the adversarial nature that is so necessary in litigation is parked outside the mediator’s door.
The goal of the attorney advocate in mediation remains essentially the same as it is in litigationundefinedto obtain the best possible outcome for your client. Moreover, if a mediation is unsatisfactory to one or both of the parties, the litigation alternative is still open, and needn’t have delayed the scheduling order at all.
On the transactional side, mediation can also be a great tool to avoid future disputes. A mediator loves to get in the middle and help the parties craft a good agreement that will help address possible issues before they can become a full-blown dispute. Agreements between friends or family, business contracts, property transactions, government actions, employer/employee agreements can all benefit from a mediator’s contributions. Many attorneys feel that if they can’t settle it by their own negotiation skills, a mediation would be useless. They don’t take into account the often salutary effect a trained neutral can have on the negotiation process. Moreover, for transactional attorneys, mediation provides their clients an opportunity to continue working with their trusted counsel, rather than having to find trial counsel and explain the entire situation anew.
In an effort not to generalize, I have to admit that mediation is not the right course to choose in every dispute. Unfortunately though, it is often not considered at all. Rhode Island is significantly behind most states in their use of alternative dispute resolution.
The next time you are evaluating a case, consider how much control you would like to retain over the process. Consider who you would like to see in the driver’s seat.
Initially published in the RI Bar Journal, Let Mediation Put You in the Driver's Seat, May/June 08:25(56).