FAQ: Mediation & Litigation

Why would I want to mediate when I can sue?

I’ve never heard this question from anyone who has ever been in a lawsuit before.  As Voltaire said, I was never ruined but twice – once when I lost a lawsuit, and once when I won one.

I’m guessing you probably don’t really want a lawsuit for its own sake — there’s probably something else you want.  What is it?  Property returned or given?  Money compensation?  The satisfaction of being right?  Of winning?  Something else?

Once you have an idea what that is, then the next question is: what’s the best way to get it?

Let’s assume you have paid a lawyer to represent you, you have a legally valid claim to get what you want, you’ve been through the litigation process to trial and you won.  That still doesn’t get you the property back or even the money paid – it gets you a piece of paper called a judgment.  If the defendant chooses not to pay, you get to hire your lawyer again to represent you in another lawsuit to collect on the judgment.

That’s a big reason why 98% of lawsuits settle before judgment.

So if you start your lawsuit, chances are you’re going to come to some sort of agreement with the other person anyway.

Why not instead choose mediation that’s designed from the start to get you there?

If 98% of lawsuits end in agreements, but only 80% of mediations end in agreement, why would I mediate?  Why not litigate, because it’s more sure to get to an agreement?

Litigation is 100% certain to get to you a solution.  That’s what it’s designed for — certainty.   Even if it takes a judge making the decision for you, the case is always resolved.  It’s a last resort — it always ends it.

And sometimes, for some people, it takes getting to the courthouse steps before they realize they don’t want the judge to decide it for them.

You now have the chance to ask yourself at the outset:  what kind of solution do I want?  Do I want the agreement that comes out of the animosity of a whole bunch of adversarial litigation?  Or an agreement that comes from a process that’s designed from the start to reach that agreement?

I’ve been told I need to go through a lot of litigation before mediating.

Some lawyers and mediators think that’s true.  And for them, it may be that they don’t have a way to help their clients reach an agreement without litigating first.

It’s the school of thought that disputes have to be fought like wars or fist-fights, and that until both sides have done some fighting, they won’t be ready to settle.  As one litigator put it, “when settlement occurs is simply a question of how much bloodying-of-noses there needs to be.”

The problem with that approach is the more litigation-fighting that happens before mediation, the fewer possibilities there are for agreement, and the more damage that has to be undone to reach that agreement.

Starting a lawsuit first isn’t necessary if the mediator knows two things:

  • how to work with people who haven’t sued each other, and
  • how to help people find solutions that meet their interests that their lawyers think are legally irrelevant.

Many mediators, and a lot of lawyer-mediators, don’t know how to do either of those things.

We can start a mediation early in a lawsuit, or even better yet, before it starts.  There are a lot more opportunities for coming to innovative and creative agreements when you start early.  And there’s a much better chance that resolution can be reached more quickly and less expensively.

I don’t trust them to give me all the information that they have that I need.  I’ve been told I need to sue them to make sure I’ve got everything.

In mediation you have the very same tools available that lawyers use to convince and persuade each other that they have everything. What you don’t have is the fighting.

Either way it comes down to trust — even in litigation.  After depositions and document productions and “meet and confers” and motions to compel and hearings, the parties and their lawyers still have to decide whether they trust that they’ve gotten everything.

What you have in mediation, that you don’t have in litigation, is a process that’s designed to build trust.  It’s not based on blind-faith, naive, pollyanna-ish happy thoughts.  We build it — step-by-step.  We create an iterative process where people ask each other for the information they need, the other provides it, and they can review it and see for themselves whether they’re confident they got everything.  Trust is build on verified performance.

Plus, in mediation you get a chance to explain why you want something, even something that’s legally irrelevant.

In a mediation, people can sometimes get information a judge could never order them to provide.

And if after all that you’re still convinced they’re holding out on you, you can always stop the process and go litigate.