When it comes to resolving disputes, especially legal disputes, most people’s first thought is litigation: suing the other party and “taking them to court” to get what they want. They don’t think of mediation first. “I’m going to sue you for everything you’ve got!” sure sounds more emotionally satisfying than “Why don’t we mediate?” Besides, mediation is something that the court makes people do, they think, not something that someone might do voluntarily to avoid going to court, but perhaps mediation should the first thing on their minds.
Life Size Rock'em Sock'em Robots® game. Photo: Jeff Smoot
While litigation and mediation both have the same goal—they’re both dispute resolution processes—they are vastly different approaches that vary significantly in terms of time, process, cost, and control.
Litigation is the usual approach. It involves filing a lawsuit and asking the court to decide. But the litigation process is time-consuming; it can take a year or more for a case to go to trial, a year of written discovery, depositions, court hearings, and preparation, that involves a large commitment of time and legal fees, not to mention stress and the potential to destroy friendships, families, and business relationships. And ultimately, a judge or jury makes a final decision that is binding on the parties subject to the right to appeal. The parties have an opportunity to have their “day in court” but in the end, a decision is made for them that one party—or both—may regret. In some cases, especially divorce cases involving child custody, it can be devastating.
Mediation is much different. It involves using a neutral third party to facilitate a difficult conversation between the parties in an effort to help them find common ground to resolve their dispute through an agreement that meets each party’s needs. Unlike litigation, the mediator does not make a decision for the parties, but instead facilitates effective listening and communication with the goal of helping the parties reach an agreement that is voluntarily accepted by both sides. The mediation process is often faster and more cost-effective than litigation, and gives each party a measure of control in an outcome that they can accept instead of having a decision made for them.
Which is better? It depends on who you ask, but even the courts favor mediated dispute resolution in many cases, which is why many courts order parties to attempt mediation before the case goes to trial. Consider the thoughts of retired judge David J. Issenman, who spent 20 years as a family court judge in New Jersey:
“I am firmly convinced that mediation … is much more preferable, easier, faster, and less expensive than litigating … in a courtroom,” Judge Issenman wrote in a Sokoloff & Wolfe law firm blog (https://www.skoloffwolfe.com/insights/mediation-is-better-than-litigation-for-your-divorce-a-judges-perspective/). “In mediation, you have a much greater ability to control the process … than you do in litigation, where you are at the mercy of the system.”
“Having a judge decide your life should be the very last option,” Judge Issenman concludes.
Many lawyers and judges concur that mediation should be considered as a first option in many cases. Instead of taking someone to court and waiting to mediate until ordered to do so by the court, it may be wiser to take them to mediation in an effort to resolve the dispute before filing a lawsuit. You don’t have to have a pending lawsuit to engage in mediation; you can mediate first and litigate only if the mediation fails.
In many cases, early mediation can result in an agreement and avoid much of the time, cost, and stress of litigation. Instead of spending a year entrenched in the litigation process, you can move forward with your life. That sounds like a winning strategy.
To schedule a mediation in Washington or Hawai'i, contact Jeff Smoot at jeffsmootlaw@gmail.com or (206) 420-2466.
Copyright © 2023 by Jeffrey L. Smoot. All rights reserved.
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