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. Yet, the truth is that 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 all they need to win is to merely “tell their side of the story.” However, that is not the way cases in litigation progress, because in trying to ensure fairness, we have created a system of rules that grinds rather slowly.
People are surprised that litigation is not about just telling a story, but rather it is an intricate and expensive “system.” To people who haven’t spent years of their lives studying precedent, litigation is mundane, confusing, and costly. Contrary to depictions on television, a lawsuit isn’t fun or creative, 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.
At mediation, parties get to decide what they are willing to accept as a resolution. It is a compromise. 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 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. Compromise is tough stuff. If it wasn’t, I would be out of a job. That said, compromise is a lot more palatable to most people because you have a choice in the matters that most affect your life. So, mediation is something that should be carefully considered before and during litigation.