WHY MEDIATION IS A GREAT SOLUTION AND A SHOW OF STRENGTH
I learned how to litigate from arguably one of the most talented
lawyers in the country. I’ve litigated federal cases, administrative cases, and
matters of corporate and investment dispute. So why would I advocate a solution
which might be perceived by some as the “weaker alternative?” I have come to
believe over the years that mediation is the stronger alternative and that for many ,
mediation, as a means of first resort, can provide
freedom from high legal bills, a negotiated and controlled settlement that satisfies both parties,
and a means to move on emotionally from the dispute at hand.
A few years ago, I represented the “underdog” partner in a
high stakes palimony case.
After a year and a half of contentious litigation in states
on both sides of the country (and with preparation to file in a third), a
federal judge recommended we mediate a settlement.
The process took one day (about 5 ½ hours), face to face,
and then about six weeks of back and forth to come to a conclusion. The parties
settled, getting my client a comfortable settlement, and her former partner presumably
got peace of mind, closure, and an end to large firm legal bills. I estimated
he had spent at least $500,000 on a first round of pleadings and a removal to federal court.
Ironically, my client had asked him up front for less than
she ultimately received. In short, had the fellow given her what she wanted on
the heels of their break up, he would have saved over seven figures. An over zealous
divorce lawyer had convinced him to hold his ground and make her sue.
It was a tense and embattled year and a half for all. In
retrospect, had her partner focused on settling for a reasonable amount of
money up front, he would have come out better financially, and I’d go so far to
suggest, emotionally. Even as we neared a close, his high priced litigation
lawyers urged him to keep fighting. On the eve of settlement, they coaxed him
to file an appeal to a pending pleading, which would have kept the case going
for at least another six months, if not a year. The parties settled, not as friends or lovers,
but with a deal they could agree on.
So why not mediate? There’s a common mythology and
misperception in the US that “having one’s day in court” will bring justice and
emotional closure. Often times, this is far from the truth. Judges are not hand
holders or therapists. They have enormous case loads and crowded dockets. They may make unpredictable rulings that go
against the best lawyers’ projections and research. They can and often do limit
what you can say in court. The emotional release you thought you would get from
appearing in court can be stolen by frustration and a court ordered settlement
or ruling that satisfies no one.
Mediation solves this problem. The parties are entirely in
control of their own settlement process. The private mediator serves as a
neutral referee, representing neither side, and facilitates presentation of
each parties’ view point, discussion of options and brainstorming of solutions
in an out of court private setting. The parties’ discussions are confidential,
and in most cases can’t be admitted in court.
Parties can represent themselves before the mediator, or
bring a lawyer. In many cases, appearing by oneself can help facilitate the
settlement and keep tensions down, or at least help frame the issues for
presentation to a lawyer, if the parties cannot settle.
The process is particularly useful for family asset matters,
including divorce, palimony, and also for family and closely held business
negotiations. You can get the issues out
on the table and determine up front those matters where you might be able to
agree. You can do a partial settlement,
leaving unresolved issues for litigation, if you’re convinced you’ve reached
an impasse.
Mediation can also be used as a planning process. If you’re
considering a prenuptial agreement with your partner, or determining how a
partnership investment arrangement should be structured, discussing the matter
in front of a mediator who is skilled in such matters can give a neutral
consideration of issues that you might not have thought of. It can get those issues raised and dealt with,
prior to a dispute, and hopefully remove cause for later disagreement because of
the pre-planning function and the establishment of a reasonable and agreed upon process.
Substantial money can be saved because you and the other
party are paying the mediator one hourly rate, rather than paying two separate
lawyers. Even if you retain a lawyer for
the final review of the deal you have come to, since some or even all of the
issues may have been resolved in advance, there’s less time that the lawyer
should have to spend on your case. Even
if you hire a lawyer to represent you at the mediation, the time spent can be
dramatically lower than that required to go to trial.
In short, consider mediation as a means of first resort.
While the case may not settle on the first session, in many situations, the
ground work will be laid for a deal that you all can live with. You’ll be able
within bounds to show your emotions and make a presentation of your side
without objection from opposing counsel or interruption by the judge. You can settle your matter privately without
publicity and the burden of a public record. Mediation can save you time,
money, face and emotional aggravation. Those advantages are a sign of strength, not weakness.
Please contact us at argentomediation@yahoo.com to
discuss our mediation process and to schedule a mutually agreed upon mediation
session. Typical sessions last 2 to 2 ½ hours, each in the morning and the
afternoon. We have the option with notice to extend an afternoon session if the
parties believe they may be close to an agreement. We have several venues across the country
from which we can conduct a mediation, or we can come to you, with payment of
reasonable travel and accommodation expenses. See our profile at: www.linkedin.com/in/paulaargento/
SETTLE YOUR DISPUTES NOW - USE MEDIATION AS A FIRST RESORT!
