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Consider alternatives to litigation

By   /   Friday, September 4th, 2015  /   Comments Off on Consider alternatives to litigation

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“I’ll See You in Court!” A common salutation of friendship upon parting from another and an expression of a looking forward to the next opportunity to converse, such as: “I’ll see you soon,” is transformed into a threat.

This common expression means, “I am done talking to you,” or “There is nothing more to say.” The parties have usually been involved in some sort of common enterprise; a business arrangement that meets the needs of each, or some form of mutual property ownership, or a contractual arrangement, or even perhaps a marriage. They have become unable to work out their problems, so they wave the litigation sword and bid their former compatriot, now an adversary, to cross the line and go to war.

Our society utilizes its justice system as the forum to resolve nearly all of its disputes. One hires a lawyer, files a lawsuit, serves notice of the lawsuit on the opponent and engages in protracted “discovery” and law and motion proceedings; all heading toward the doorstep of trial. By the time one reaches a trial, resources have been depleted, feelings have been trampled, and the ability to focus on other important life events has dissipated.

And then comes the trial. It will be a public airing of a dispute the parties are showing the world they were unable to resolve themselves. They are engaging in an admission of failure. They are laying their problem at the doorstep of another. It might be a judge, or it might be twelve citizens, good and true, but someone else is engaged to resolve the dispute. Many cases need to go to trial; many do not.

The parties expect that they will achieve vindication in the kingdom of the law. The royal arbiter (read judge) will decide who is right and who is wrong. The victor will be knighted by the royal touch of the sword on the shoulder; and the loser will feel the wrong end of that royal sword’s wrath, and the righteous side will prevail. This, of course, never happens. The end result of a trial is often something neither side is completely happy with. And then there are post-trial motions, and petitions for re-hearing, and appeals.

Other methods exist for the resolution of disputes. They are less costly to the pocketbook and to the emotional well-being of those in the fight. They are less time consumptive. They are out of the public’s eye. And they can mend relationships so the parties can have the chance to co-exist, or even work together in the future. Those methods include mediation, arbitration, neutral case evaluation, and special master services, among others.

The common thread that runs among these alternative dispute resolution (ADR) processes is that a neutral is engaged to focus on the impediment between the parties with the goal of getting that dispute into the rear view mirror for each disputant. The process occurs outside of a courtroom in a private location where parties can let their hair down.

The most common ADR processes are arbitration and mediation. In an arbitration hearing, a neutral manages a quasi-judicial proceeding where the parties present evidence and argue the law.

The arbitrator’s decision might be binding, an agreed-upon final resolution. Or it might be non-binding, so the parties retain the right to “see you in court.”

Mediation is a process with deep historical roots, but with a fairly recent formal acceptance into our society’s dispute resolution process. It is the least adversarial form of ADR. A neutral is engaged to work with the parties, to identify issues underlying the dispute, to manage dialogue between the disputants, and to help them arrive at a mutually agreeable resolution.

A lawsuit in court is formulaic in nature. The judge knows the evidentiary links the parties have to demonstrate at the appropriate level in order to prevail. If successful, the appropriate award is determined by the law of damages, or remedies. But a mediator is not restricted to “the formula”. What might be acceptable to the parties as a reasonable remedy is often something outside the normal bounds of the law and, at times, something neither side could have imagined previously. The parties never abandon the power to frame the resolution of the dispute. They maintain control.

Most judges are good at conducting trials. Many are suspicious of other forms of dispute resolution. Lawyers have an understandable economic interest in the longevity of the battle.

So one must ask, before angrily walking away, do I really want to end this conversation with “I’ll see you in court?” For some disputes, the best next step is to say, “Why don’t we hire a neutral, a mediator or an arbitrator, to help us resolve this dispute.” One might save time, money, emotional energy, loss of control, and a continuing relationship in the process.

• Frank Ochoa is a retired judge for the Superior Court of Santa Barbara County.

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