To Litigate or to Mediate?
Alternative or Traditional Dispute Resolution?
In our culture, the default is to think of lawyers when we have been wronged. Conflict is never pleasant and running away from them often seems more attractive than resolving them. Unfortunately, that approach could cost us dearly.
Consider two neighbors, a couple of business partners or a family being torn apart by conflict. What these have in common is that they need to be able to continue their relationship even in the face of conflict.
Courtroom dramas make for great entertainment. Real life is a different story, but not always. We're going to take a look at when to choose a collaborative approach and when to let others fight our battles for us.
The Bible has a lot to say about resolving conflicts. Prominent among the passages is Matthew 18:15-17:
“If your brother or sister sins, go and point out their fault, just between the two of you. If they listen to you, you have won them over. But if they will not listen, take one or two others along, so that every matter may be established by the testimony of two or three witnesses. If they still refuse to listen, tell it to the church; and if they refuse to listen even to the church, treat them as you would a pagan or a tax collector."
That first step, talking to the person, can be really difficult for us. Sometimes, it is just easier to skip to the next step and talk to all our friends about what happened. Consider for a moment how that's going to look for him or her. Talking about somebody behind their back is a really good way to turn a small conflict into a big one.
It can be difficult for another reason. When we're upset, emotions tend to trump reason, our hearts speak for us rather than our brains. How we say things matters. More about that later.
Conflict Resolution Methods
In our modern day, we usually break conflict resolution into five distinct methods separated into two groups:
The differences between them lie mainly in the amount of control we have. Can you see how going down the list, control gradually slips away from us? Talking directly to the person obviously gives you the most control. Communicating through an advocate places a lot of power and control in that person's hands. Going to court completely surrenders control to a judge.
Another effect is that as you go down the list, chances of continuing the relationship fades away.
Books about Conflict Resolution
It was a bit of a challenge to find any books that would treat all methods equally. Most authors have a preference, advocate for one dispute resolution method over another. The truth is that each of them are equally valid when applied to appropriate circumstances. The tricky part is to select the one best suited for the particular situation, so learn about all of them.
Collaborative dispute resolution methods are voluntary. Some courts have been known to require mediation before you can file a lawsuit. Making it mandatory goes against the very grain of collaborative dispute resolution. The idea is to have the parties work out the difference and not force anyone to do anything they do not want to do.
However, most resistance to this type of dispute resolution stems from ignorance. If just a small number of lawsuits can be diverted by just a few minutes of education, it is well worth it.
We do this all the time. We negotiate with the grocery clerk whether to use cash or credit, paper or plastic. Those negotiations usually end without much conflict.
Choosing the type of fence to erect around your garden might not go quite as smoothly. What if your neighbor wants wood and you want vinyl? What about that tree branch robbing your vegetables of sunshine in the afternoon?
Business partners work out how to run their businesses all the time, but sometimes they can't.
The classic of all classics for direct negotiation.
Mediation is a way to work out negotiations that for some reason have become stuck. A neutral third party who can lead the negotiation without becoming personally involved is inserted. Mediation can take a number of different forms from the very process centered to the very outcome centered.
The main idea is that the parties agree up front that they will not go to court. They do choose attorneys to negotiate on their behalf, but they have to agree that they can not represent them if one of the parties decides to go to court anyway. If that happens, they would have to choose new attorneys and start over.
Letting others fight our battles for us without relinquishing control.
Judicial dispute resolution methods are not voluntary. Refusing to participate usually has consequences and so does the outcome. There are always methods to enforce it.
Arbitration is similar to hiring a private judge. In fact, some arbitrators are retired judges. Often the arbitrator is chosen by agreement between the parties.
Arbitration by-passes some of the procedural rules of the courts. That saves time and that saves money. The way the attorneys prepare for the arbitration hearing is usually the same as if they went to court.
Contracts often include a requirement that disagreement about its interpretation be settled by arbitration.
In most cases litigation is really the last resort. Yes, judges do have to rule according to the law, but often have so much discretion that outcomes are rarely certain. For this reason, attorneys usually work hard to reach agreement before it comes to that, sometimes at the very last moment.
Which Method is Better?
The short answer is that it depends. Of course, that is not a very satisfactory answer. You will want more details.
Some factors to consider:
Violence can take several forms. It is easy to think of violence when punches are thrown and noses are bloodied. It is more difficult to think of abusive language as violence. Charisma and sheer bulk can also appear as forms of violence for the timid.
If you have to fear for your life or safety, direct contact is not likely to be your best option. You need at least one intermediary. A mediator can work with you in separate sessions so there will be no direct contact. However, mediators are humans too and therefore just as vulnerable to intimidation as you are. When that happens, you may be safe, but still at a disadvantage even with the best mediator.
Be aware that it is just as difficult for mediators to admit to limitations as it is for you and I. It is up to you to watch out for signs that the mediator is in over his/her head and it is time to call in the lawyers.
Attorneys are conditioned to fight the best they know how on behalf of you, the client. They are supposed to do whatever is best for you even if it goes against their own interest. The tricky part is to know what is best for you. Attorneys have to fight as hard as they can for your cause. They are not equipped to know what is best for you. Only you can do that. Sometimes that means you end up spending thousands to save pennies. It is up to you to control your lawyer, to know when to quit. Only you know what is important to you.
Physical or Mental Health
Being in a state of conflict with another person can be incredibly draining, physically and emotionally. If you don't think you're operating at 100% physical capacity, hiring advocates is almost sure to become necessary. If you're fatigued, you're not likely to give full consideration to any settlement proposals being presented not to mention making any of your own.
You may not even be aware of your own mental state. That could get you in some serious trouble. You could listen to well meaning friends and family, but it is probably better to hire a professional who can escape the personal involvement. Coaches and therapists cannot live your life for you, but they can help you see clearer and move towards goals that make sense to you.
What do you know about your opponent's physical and mental state? How will that impact the way you approach this? Are you prepared to take advantage of his or her disadvantaged condition?
Alcohol and Substance Abuse
As with mental health issues, denial could be a factor when alcohol and drugs are involved. Your ability to make rational decisions is likely to be impaired. You may not even be aware of your condition even if it is obvious to others.
Even when none of the above factors are present the scales of justice can still be tipped against you. Say you are the spouse of a business tycoon and your role was limited to social events. More than likely you would be at a disadvantage in the event you would have to separate and divide the business assets. You would need professional help with substantial subject matter experience.
Courts aren't generally involved in creative conflict resolution with a goal of satisfying both parties. Their approach is more of a win-lose approach. If one wins, the other will necessarily be losing. How strong is your case? How predictable is the outcome? Yes, the courts have to rule according to the laws of your State, but often have significant discretion. Child custody cases, for example, are notoriously unpredictable.
When the outcome is uncertain, a negotiated solution is almost always better.
Speed: Direct negotiation may settle a case in minutes rather than years in court.
Formality: Courts have strict procedural rules. Any other method is far more informal.
Cost: The parties can almost always agree on some aspects of the disagreement and by-pass otherwise required discovery procedures. Saving time saves money.
Changing Circumstances: Negotiated solutions are easier to modify than litigated ones often simply because the relationship has not been completely destroyed in litigation.
Creativity: Litigated solutions may serve neither party. Negotiated solutions can be as creative as you can agree.
Privacy: Litigation is generally open to the public. All other methods can remain private.