Why I Mediate

With twenty-plus years’ experience in the litigation business, I’m disappointed in the expense, waste and uncertainty of it.  I’ve grown concerned for the stability of our commercial structures and society that rely on litigation to settle disputes.

Litigation is simply not a good way for people to resolve their disagreements.  It’s an amazing and noble system for our society to put an end to disputes among its members.  But it’s a lousy way for people to resolve their own conflicts.

The Ineffectiveness of Litigation

Most people don’t experience their conflict at the level litigation lawyers can deal with it.  Litigators require clients’ conflicts to be expressed in legally-cognizable claims and defenses.  They require the facts to be relevant.  Savvy clients are on to this pretty quick.  The know what they need to do:  they bring out only what they think will be found relevant.  Lawyers delude themselves when they think that these “relevant” things are all that’s important to the client.

What’s most important to the client is usually something lawyers just can’t touch with lawsuits.  There was never a case I ever litigated in which there wasn’t something else — something “irrelevant” — that was most important.

There is a reason for this.  Our adversarial legal system exists for society, not for the people involved in conflict. It provides a certain end to the dispute, not a result that satisfies the people involved.  It’s designed to channel the fight into a forum that’s less likely to cause collateral damage to other people.  So instead of beating each other over the head with clubs, they beat each other with lawyers.  It’s more civilized, but it’s still fighting.

It’s not a process many people would choose for themselves if they thought they had a choice.  I mediate so people can have a choice.

The Inefficiency of Litigation

Certainly the participants in litigation – usually the lawyers and sometimes the clients — would like to reach an agreement.  And eventually, they almost always do.  But the process is not designed to reach agreement.  It’s designed to reach a trial where a decision is imposed on the parties.

So this is the paradox of litigation:  98% of lawsuits end in agreement.  All are headed for trial, yet only 2% get there.

What this means is that at the end of years of litigation, the case settles with an agreement on the courthouse steps.  It’s not settled because people continued to fight.  It’s settled because the people – if even for just a short period of time – stopped fighting and engaged in collaborative negotiations.

Where’s the sense in trying to get to an agreement by fighting?  What other industry does this – tries to get to its goal by deliberately heading in the opposite direction?  If firefighters did their job the way lawyers resolve disputes, the first thing they’d do on reaching a fire is throw fuel on it.

A New Tool for our Toolbox

We can begin with the goal in mind, and head toward where we want to go.  We can start with the collaborative negotiations we know are necessary.  We can focus on reaching the agreement we want right from the get-go.

The problem is that we lawyers can’t efficiently create collaborative negotiations with the one tool we have in our toolbox — the litigation hammer.

We need a new tool to reach agreement – efficiently and effectively.

There aren’t a lot of models in our culture for not-fighting, especially in the legal industry.  So I’ve gone beyond it to study and train in different models of dispute resolution — agreement-oriented processes.  What I found is to reach agreement requires legal professionals to move beyond our comfort zone:  the shopworn approach that focuses on litigation, is centered on ourselves and on what is legally relevant.  We must become solution-focused and client-centered.

Focused on Solutions, Oriented toward Agreements, Centered on Clients

I use agreement-oriented processes to help individuals, businesses, organizations and families constructively address conflict to reach their own best sustainable solutions.

My work is based on some very simple ideas:

  • Conflict is normal. Everyone experiences it. It is neither good nor bad. It just is. In conflict, you always have a choice: how will you choose to deal with it?
  • People in conflict each need something from the other person. There are only two ways for them to get it: either they agree among themselves or they have someone else decide it for them.
  • It is not necessary for conflict to be antagonistic.
  • It is our natural human instinct to move toward cooperation, even in conflict.
  • Cooperation is hard. It requires integrity, courage, foresight, restraint and persistence.
  • Fighting is easy. But it’s an inefficient way to reach agreements. And it’s ineffective in creating sustainable solutions.
  • We need help.  We’re too close to our conflict to see our way through the antagonism back to cooperation.
  • You can get to your agreement directly, without litigation.  Mediation is more efficient because it’s designed from the start to reach agreement.
  • Compromise, concessions, giving-in and giving-up make for poor solutions.
  • Solid agreements are built using stepwise, reciprocal exchanges of information, performance, acknowledgment and offers of value.
  • You can create the best resolutions — ones that are more effective, more innovative and more durable — when you focus on what’s most important to you and work toward solutions that meet your highest-priority goals.
  • I do my best work for you when I let go of my ideas of what I think is best for you.
  • You know your situation and how to solve it better than anyone — certainly better than any lawyer, mediator or judge.

If any of this sounds interesting to you, give me a call or send me a note.  Let’s talk about it.

 
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