Mediation is a More Empowering and Less Costly Way to Resolve Many Differences

By Heather | July 5, 2011

A local judge that I know likes to say, “Litigation is a meat grinder where you go in steak and come out sausage.” I can tell you from my experience as a litigator that he is absolutely correct. Unfortunately, this is a secret that we lawyers know well, but it is difficult to explain to the uninitiated.

At the beginning of any dispute, both sides KNOW that they are right and KNOW that they are going to be able to prove it. But you should face facts that what you think at the beginning of a dispute isn’t often how things end up. Initially, the parties are physically, emotionally, or financially hurt (or more often a mixture of all three), and they think that the truth is just stating their case in court. But, that is not the way cases in litigation progress, because in trying to establish fairness for the parties, we have created a system of rules that grinds rather slowly. That statement is not a judgment of the system, but rather a mere fact of the process.

What people are surprised about is that litigation is just what we call it…a “system” or “process.” So to people who haven’t spent years of their lives studying precedent, it is rather mundane, confusing, and costly. Contrary to depictions on television, a lawsuit isn’t fun or creative most of the time, because there are set rules that must be followed and because the stakes can be enormous. For these reasons, more and more people are turning to mediation as an alternative. Now don’t assume that contemplating mediation means that you will be getting a creative solution from a beautiful ex-lawyer who gets arrested every five minutes…like the mediator depicted on a recent television series. What you will get is someone experienced in dispute resolution that can help the parties and the attorneys sift through the facts and creatively find a way to end the fighting. Too idealistic? Perhaps. But it works.

At mediation the parties get to decide what they are willing to accept as a resolution. Conversely, when you go to trial, a judge or jury tells you when you can see your kids, or how much your injury is worth, or whether your business partner is liable for ruining your business. But in mediation, you can choose. That fact is very empowering. You get to decide. How often in our lives do we still feel like we have the power to decide what happens? I would speculate that many of us don’t feel like we have any control over our circumstances, but in mediation, you do. You get to decide how to end your marriage, how to dissolve your business, or how to settle a personal injury matter. Are these decisions easy? No. This is some tough stuff. But, it is a lot more palatable to most people to have some choice in the matters that most affect their lives. They may still feel like sausage when it is done, but at least they can decide on the flavor.

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