I recently read a review of a well-respected litigation attorney. He had just “won” a contentious custody battle for his client. That client reflected on his divorce experience… “If you want to “win” your custody case, hire this attorney. But, if you want to have a future relationship with your ex-partner, don’t. My ex-spouse hates me. Neither one of us “won.” In fact, our kids lost.” These words remind me why I primarily mediate. It’s the peaceful alternative to costly and contentious litigation.
In mediation, the parties who need guidance in resolving their disputes are able to sit together at the same table to have informal conversations with a skilled and trained professional. The mediator will facilitate the discussions by helping to keep the parties on track and gravitating toward a complete agreement. It’s an agreement they can own because they created it. Everyone is vested and contributing. The issues are thoroughly covered, and the parties have ample opportunity to explain where they are coming from and why. In other words, their interests are identified and discussed. There is no time limit and in fact, mediation sessions can be broken down into more than one meeting (a court hearing is often times limited to 20 or 30 minutes!) The mediator’s role is not to make decisions or orders; quite the contrary is true. Instead, the mediator is present to facilitate fruitful discussions. These productive conversations are often times not possible when the individuals attempt such discussions on their own. Such discussions are even less likely once a case goes to a hearing or trial. The goal is always an agreement or settlement that works for the parties and their families and is likely to last a lot longer because the parties are the creators of their plan. The agreement is binding and enforceable. Putting the time, effort and emotion into the process has long term benefits. Both parties come out with the “win” because they equally contributed to the agreement which is much more likely to withstand the test of conflict in future years. And, they avoided a court battle where they were likely to incur substantial legal fees.
In contrast, litigation is the process when parties resort to court hearings or trials where a Judge or Jury determines their fate. The parties don’t engage directly with each other even if they might want to. In fact, often times litigants realize they could get a faster, better, cheaper resolution if only they could just talk to one another. They are not the ones talking, however. In fact, they are somewhat muzzled unless they are placed on the witness stand. It is the attorneys who take a position (perhaps an unreasonable one that doesn’t even satisfy their client’s interests) and make arguments to the Judge. These arguments might address the client’s goals, but oftentimes it’s more about beating opposing counsel through mud-slinging and grand standing. The parties may be nothing more than spectators at the game of litigation. They may attempt to scribble notes to their attorneys, but the fact is there is very little time for the attorneys to make their cases. The Judge will then decide the parties’ fate by mandating an order which will be routine and standard with very little creativity. The parties are left to live by its terms.
Unfortunately, not all parties are capable of mediating due to profound and intense barriers to communication. We have the litigation system for such cases. It’s been my experience, however, that most people can have success through mediation. It’s not necessarily the easier route. It takes patience, perseverance, open-mindedness, collaboration and flexibility. It’s well worth the effort though. Both parties come out with the “win” by preserving a relationship that is important.