Aggravate, Litigate, Arbitrate, Mediate, Negotiate

“Sue the B-/&$%?]s.”  That is the caption on an inexpensive statue of a Dickensian barrister I have, a relic of when I was a litigation attorney some time ago.  Since then I have come to realize there are other ways in many situations to handle a dispute.

Not a day goes by that you don’t hear someone, even in casual conversation, talk about a lawsuit.   Whether business or personal, it seems that in our litigious society, going to court is almost as common as going to the gas station.

For many who have not explored their options, litigation seems the only path to resolve a dispute.  The plaintiff has been aggravated by a situation, so the knee-jerk reaction is to hire an attorney to litigate—to go to war.

To litigate is to employ an attorney as fighter to challenge the other side of the dispute in court, and to take your chances in judicial combat. The down sides of litigation everyone knows.  It costs a good deal of money for an attorney who cannot guarantee an outcome; the process is so complex that most lay people do not understand and are frustrated by the nuanced procedures; and the delays in the court system often prove frustrating (and costly), with the resolution many years or months away from the beginning of the process.  Also, predicting the outcome is like predicting the stock market.

Given the downsides of litigation, there is growing popularity in the field of Alternative Dispute Resolution (ADR).  ADR encompasses two main out-of-court resolution processes—arbitration and mediation.

When one arbitrates, the process from beginning to resolution is quicker than with litigation.  And usually the arbitrator is not only an expert on the law, but also on the subject matter issues.   For example, an arbitrator in a construction case will know about building construction, not just law and the rules of evidence like a judge.

There are still problems, however.  Arbitration is similar to litigation, in that a privately employed judge (“arbitrator”) is paid for by the parties, so it costs more per day than a court trial.  (You still have to pay your lawyer.) The outcome is just as uncertain.  Also, both sides must agree, before the dispute starts or after, to arbitrate instead of going to court or it will not happen.  And, you give up your right to go to court if you utilize arbitration.

In contrast, a mediator, unlike an arbitrator, is often an attorney or former judge who does not decide a case.   He or she works with the parties as a go-between to find common ground and eventual compromise.  This only works if both sides are of a mind to work out a deal, rather than one side getting revenge against the other.  Unfortunately, except in family law cases and labor-management, mediation is not usually considered as a solution option by aggravated parties (especially since so many attorneys would prefer their comfort zone—litigation—instead of advocating mediation).

Another option for the resolution of disputes, which is growing in popularity but still has far to go before becoming mainstream, is plain old negotiation.   We are all familiar with negotiation, in terms of pursuing opportunities whether we realize it or not, but not so much in the world of dispute resolution.

Compare the world of highly paid professionals, such as athletes, entertainers and authors.  These individuals employ someone, usually called an “agent,” to work out deals for them.   Their agents—attorneys or professional negotiators—have specific skills from training, self-study and experience in strategizing the approach and communications that lead to agreements.    The agents, unlike litigation attorneys, are not normally combative nor with the mentality that they need to “win” or “beat” the opposition.  Actually, the best ones are usually diplomats who adhere to the old adage about achieving more with sugar or honey than vinegar.

Unfortunately, these same skills and approaches utilized by a professional to reach a compromise or to create a win-win resolution for both parties—the art of negotiation--are not applied in the business world as often as they could be.   Or, people try do-it-yourself negotiation, but often emotions get in the way and the opportunity being negotiated does not materialize or the dispute is not resolved and the relationship of the parties is forever tainted.

It doesn’t have to be that way!  Just think of the options, communicate and compromise; life is too short to spend it embroiled in battle.

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