Mediation or Litigation - which would you choose and why?
As a non legal family and civil mediator, I am often surprised that folks choose to only consider litigation for family and civil matters. Mediation can provide a framework to come up with an agreement which becomes a legally binding document upon due process, including independent legal advice.
Litigation is really just an exercise in generating income for lawyers. Cases are presented in fashions skewed to winning rather than to getting at the truth. And the primary purpose is to lay exclusive blame - which is neither right nor objectively attainable.
Mediation is a much better process for parties to hear each other out (which is often all that's required) and can lead to negotiated outcomes. These represent ways forward as opposed to further en-mirements, castigation, and unresolved bad feeling.
Yes, the system has created a monster that constantly requires feeding $'s. Sadly, when clients here in BC go to a lawyer they are advised about other options but, in many cases the way the advice is given does not promote this action be followed.
Being a member of a minority of lawyers, I suggest mediation over litigation. In fact I suggest mediation prior to meeting with a lawyer - if possible. And, it is not always possible.
Waring couples end up in court because they cannot come close to anything resembling mediation; they refuse to discuss the issue(s) between themselves out of anger, spite or irrational, strong-headed emotions. But if a practical choice is to be made between mediation and litigation, smarter brains should choose mediation.
Lawyers have a tendency to find fault in everything. I prepared marital-separation agreements over twenty years and no matter how fair the agreement I drafted, the other attorney would usually advise their client to change something. Fortunately, my clients were smart enough to convince their spouses of the fairness of the agreement as written.
I will suggest as I have always advised my clients to take the opportunity to talk to each other - this one last time. Remember you loved each other at one time and this may be the last time you have to cooperate with each other and this may be the most important time to do so. One last time getting along with each other and you can save yourselves heartache, unnecessary stress and money. Lawyers do not work for free. Mediators do not work for free. And the money lawyers and mediators earn comes from the assets you own, which also adds to the debt you may have amassed between you. So, talk this one last time.
I do advise however that you have your respective lawyers review any agreement drafted, once agreed upon, but hopefully that will merely be a formality if the agreement was drafted fairly.
Sadly, as you say, many lawyers will try to interfere in a mediated agreement or guide the parties to litigation. The lawyers I am fortunate to work with recognize that families and in certain civil cases the mediation process is better for all and
Ditto, regarding my companies EEO complaints.
It depends on who the "mediators" are. If they represent the industry in which those you are mediating against belong, say swimming pool installers, ... run away as fast as you can and don't sign a contract that requires mediation through them.
If the mediation company in contract is "truly" unbiased, it may be the better way to go, cost-wise, so long as you know you probably can't go to court if you don't like the outcome.
Lawyers and adjudication are better, I think, when the complaint is complicated, there is a lot of money at stake, or the mediator is biased.
BTW, if you are an employer, make sure you have EPL (employee protection liability, or something like that) insurance, even though the deductible runs a minimum of $10,000, and don't automatically go to mediation when you know you are in the right; I know both from experience.
As a former legal assistant at a personal injury firm (I know, not quite the same as family law), I'd say mediation is the best first step, although it can be expensive in itself. Mediators don't offer group discounts or anything. However, it's the lawyer who incurs the costs and hopes to recover it after settlement.
Unfortunately, when you're dealing with hundreds of thousands of dollars owed by insurance companies, they don't tend to budge much. Regardless, litigation in personal injury law is usually preceded by mediation due to the low(er) cost and possibility of settlement sooner.
Mediation is a great way to go if you can and have a judge as the final arbitrator.
But it can cut both ways.
I had a $30,000 claim and a criminal charge against a vendor and went to arbitration. Without wasting time I had absolute physical evidence and a written signed contract.
The case was heard by an actual judge and he found in my favor in like 5 minutes but he refused to allow the criminal charge.
The criminal charge was theft of material in excess of $4000 which makes it a felony. The test I ran on 100 random samples showed that the material they returned was not what I had sent to them but an inferior grade of steel and short on count.
That was fine but having the criminal charge pending and already approved by a judge is the stick you need to actually get paid.
So I won a $30,000 case but had to settle for $7800 + all legal & testing costs.
In other words because an arbitrator wasn't willing to follow the law and apply the valid criminal charge I had no way to force full payment.
It would have taken longer to get a court date and have a trial of simple judgment but in open court the outcome for me would have been better.
I still believe that mediation is always the best way to settle issues but be cautious that it is really in your best interest.
I didn't think a mediator/arbitrator has the power to find guilt or innocence do they? Doesn't that have be done under the normal rules of evidence which mediation, to some extent, ignores?
When you have a judge as arbitrator a lot can happen when a criminal charge is part of the arbitration they can exclude it. You can still file with the police but that can be self defeating. It was complicated more than I want to get into here.
Don't confuse mediation and arbitration as they are two completely different process - mediation is usually non-binding and you can walk away from that process if the need arises but arbitration is final (and can also be very costly).
Mediation is different from arbitration and a judge is not present in mediation. Any mediator or arbitrator must follow the legal process and should recommend independent legal advice before any document is signed and or presented before a judge.
All routine civil and family matters should be referred to arbitration or mediation. That is just a no brainer. It should never be a question whether or not to be referred there. Objections can then be made and if reasonable considered and a decision made. It should not be a suggestion to go to mediation it should be a requirement and then exception made to that rule. California Judiciary is pretty much on this page and logic.
Probably it is not such a good idea in personal injury or complex litigation unless both parties are fully behind it. The cost is very close to a bench trial and in fact the mediators in large scale mediation are far more expensive than the courts.
Mediators are no more biased than judges. And many times less so. And mediators are far more transparent.
An active practicing attorney is more often than not more in tune, than an elected or appointed government official with the title judge.
The bottom line is that both mediation and litigation only occur when there is a dispute. Get over it. 9 times out of ten both parties will be dissatisfied to some degree with the outcome. So one should pick which road to that conclusion they would prefer. Perhaps you like to tear a band aid off quickly and perhaps you would rather a slow pull. Neither really has an upside.
Mediation is always a better choice, it is more informal, the parties control the outcome and it is a lot less expensive. In some cases, you can even salvage a relationship. I am not an attorney but in my profession, the boiler plate / excepted contracts always include a mediation clause as the first step to any dispute resolution.
Mediation is more fruitful than litigation. My understanding is that If you leave your "right" for others, you are going to win the Ethical War. In mediation, you may lose some grounds but eventually you save your time and energy.
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