By: Steve M. Cohen Ed.D.,CMC

It sounds strange doesn't it? Don't listen to your lawyer. Sure, you could understand Don't sign anything. Don't trust anyone you don't know. But, don't listen to your lawyer. It just doesn't sound right. It may sound like I don't like lawyers. Quite the contrary, I really like lawyers. I like working with them on cases. I even like the adversarial challenge of cross examination as I am providing expert testimony in the courtroom. I also like mediation. This article explains the difference between litigation an mediation. It also describes a process which is a very close cousin to mediation, I call it recovery.

First, let's start with What is Litigation? Litigation is where two or more disputants (people with a dispute) each hire their legal representative (their lawyer) and submit their dispute to an arbitrator ( a judge). Their legal representatives present the argument for them to the judge. The judge listens to the arguments, considers the arguments in the light of the law, and makes a binding decision. Then there could an appeal, which starts the process over.

The important points here are the following:

• Others speak for the disputants;
• The arguments must fit within the framework of the law;
• The judge (and / or jury) makes the decision.

What is wrong with this picture? The first point, that others speak for the disputant, suggests that we as individuals cannot speak for or represent ourselves. We know how we feel. We know what went wrong. We know what is what. Maybe not in a legal framework but in a common setting we know what is what. Maybe we would rather that someone else speaks for us because we are timid but that's another matter. Even though we may wish for someone else to fight a battle for us, if there is no battle we can probably speak for ourselves.

The next point is that the argument must fit within the framework of the law. Why? I know we need laws to establish and maintain order, but come on. Everyone has heard about technicalities. The law has its own language and rules. To settle a dispute the only laws we need are the laws of civility. We need to be courteous and perhaps flexible. We don't need to be legalistic. Being legalistic may even get in the way of settling our dispute.

The last point is about the judge getting to decide the outcome of the dispute. This can be hard to swallow. This infers that there is going to be a winner and a looser. The judge agrees with disputant A and therefore A wins and B looses. The judge agrees with disputant B and therefore B wins and A looses.
There are so many things going against you in a litigation situation. You have to get a really good lawyer. How do you know you picked a good one? Are they an expert in your particular dispute arena? You have to have a dispute within a legal framework. The legal framework is very complicated and full of loopholes. The litigation process is very public, the legal record is usually published and open to anyone and everyone who wants to look. The litigation process is very sloooooow. It is not unusual for a dispute to take one or two years to wind its way through the process with crowded dockets and continuous delays. Then there is the appeal. That takes another year or two. Next, the litigation process results in a win/loose. Finally, the process is very expensive. Everyone knows that lawyers are expensive.

The alternative is mediation. An independent third person assists two disputants settle their argument. The disputants speak for themselves and agree on an agreement. The agreement is not forced on them by the judge. The mediator facilitates the two disputants discussion until the two disputants decide on a course of action that they both agree to and can live with. Mediation is the opposite of litigation in that it is fast, private, cheap, and results in a win/win outcome. Let me explain.

I said that mediation is fast. It doesn't need to be scheduled around a court docket. It is independent from everything else except the schedule of the two disputants and the facilitator / mediator. Most mediations can be solved in a matter of weeks not years.

I said that mediation is private. The dispute resolution can (and usually does) contain a clause that requires the disputants to keep the agreement confidential. Additionally, the agreement is not made in a public forum and therefore, is not public.

I also said that mediation is cheap. There are no personal legal representatives to pay. There are no court costs to pay. There are no court reporters or other costs. The mediator does charge a fee but it is the only professional charge. The typical fee (if there is a typical fee) is between $5,000 and $10,000. This is far cheaper than both sides paying their representative for hours and hours over several years and both sides paying court related costs.

The last point is that mediation results in a win / win. Litigation results in a win / lose decision that is imposed on the two disputants. Mediation produces a result that MUST be agreeable to each party or otherwise, why would they agree. It is also not imposed upon the parties. The parties agree to it themselves. This is a really big deal. The threat of loosing a litigation after investing so much in time and money is very real and the results are demoralizing.

At the beginning of this article, I mentioned mediation had a close cousin which I call recovery. Remember that? Recovery is a process that uses the mediation techniques but is not technically mediation. The definition of mediation is "an independent third party facilitating a decision between two disputants. What I do (a lot of) is recovery. I usually work for the senior management or the owner of a business who has a dispute with someone, usually but not always, an employee. The dispute could be related to an allegation of sexual harassment. The dispute could be a termination. It could be about almost anything. The point is that management has a dispute with one of its employees and they hire me, a facilitator, to help them resolve the dispute. You see, technically I am not an independent third party. I have been hired by management to "recover" their position and obtain a conclusion that both parties can agree to-thus avoid a litigation. It has to be mutually agreeable to work. If it doesn't than there is the option of litigation.

The title of this article is Don't Listen to your Lawyer. The reason is your lawyer has a vested interest in your litigation. He or she gets paid if there is a fight. The longer the fight the bigger the payoff. At the very least the lawyer has a pre-disposition toward litigation. It is a way of life for many lawyers. Its like "if you only have a hammer, everything looks like a nail." Most people don't like to battle. Most people don't need a battle to settle their disputes. Often the dispute is not even a dispute but a simple misunderstanding with egos in the way. Because it is in your lawyers best economic interest for you to litigate, because it is not within your lawyer's radar to avoid a battle, your lawyer will never advise you to mediate.

Let's look at a few examples. Remember a few years ago when the African-American woman was falsely accused of shoplifting in the department store. It was around Christmas time and the woman went into the store to buy a winter coat for her husband. She was racially profiled by the store's security personnel. They suspected her of shop- lifting. They accused and detained her and after a time released her unceremoniously. Management was defensive. She was mad. She sued the department store chain and won a million dollar judgment. It was messy. It was arduous for the African-American woman and expensive for the store. The woman was humiliated and angry. She told her friends about it. As time went on she told and retold the story. Her friends told her she should do something about this injustice-she MUST do something to teach "those people" a lesson. She "dug her heals in" was up for the fight, she waged one, and she won. Sweet, but hold on. The case is still in appeal. The African-American woman has spent years of effort, energy, and her lawyer has racked up thousands of billable hours. If she ever sees the money, how much will she see?

This one was RIPE for recovery. What I would have done was meet with the woman immediately upon notification of the dispute. I would have agreed that her treatment was deplorable. I would have reminded her that she went into the store to buy a winter coat in the first place. I would have suggested that she put aside her anger and together lets go back into the store and pick out the nicest winter coat in the store. While we are there, I would have suggested, lets pick out one for you and your daughter too. While we are at it lets get everyone a new spring coat too. After all, I would say, the spring is coming! I'd get her thinking about the future not the past. I would get her focused on getting on with a bright future not one bogged down in a legal battle. I would ask her if getting a sincere apology from the store's senior management and 6 new coats would be enough for her to get over being mad. More often than not, most people would accept the deal. How much would the deal I just described cost the department store? Three nice winter coats at $500 each and three spring coats at $300 each. Even if it cost double it would still be cheap compared to a legal battle that we know now costs the store a million in the judgment, the store's own legal defense costs, and the bad PR generated at Christmas time. The law suit probably cost the store 5 to 10 million in lost sales alone.

It would also have been private. I would have the woman sign a release stipulating that the deal is confidential and stipulating that she won't take any further or future legal action against the store.
Do you think the woman would be happy with the deal? She got (hypothetically) six new coats and an apology. The store recovered its position--from a very unhappy customer who "badmouthed" and sued the store to a very happy customer who will be singing the store's praises to all her friends.

Here is a real example: Two business owners / partners decide that the "luster" in their relationship has worn off and they want to dissolve the partnership, split up the business, and go their separate ways. They are mad at each other. Each feel vindicated and secure that the other person has screwed up the business. They go to their respective lawyers who says "you are right, they have tried to screw you and we'll fix them!" The individuals see that if the fight proceeds, the lawyers rack up fees, and virtually all the money goes to their lawyers. Instead they called me to mediate a mutually agreeable exit strategy. There were six meetings over eight weeks. The individuals agreed on the split and paid me $10,000. They spoke for themselves, they were passionate about their feelings they ventilated. In the end they kept the money not the lawyers (or the mediator). It was fast, private, cheap, and ended in a win -win for each.

Another real example was between an employer and an employee. The employee had an allegation of sexual harassment made against him. I was hired to conduct the investigation into the allegations. The investigation substantiated the allegations which were serious. I recommended termination. The risks for the employer were that the employee could file a wrongful discharge law suit and the publicity could hurt the business's reputation. I recommended recovery. I met with the employee to be terminated. I spoke about the severity of the situation and the fact that the loss of this job was already a given. I spoke about the potential loss of the whole career that could result from this incident. I talked to the employee about the practical matters of getting on with his life and career and supporting himself and his family. The process took about 8 meetings over a 5 week period of time.

In the end, the employee was allowed to resign thus protecting his dignity, his reference, and a chance for a fresh start in the future. He got a small severance package which reflected the company's recognition for the positive things he contributed during his time with the firm. The company got a signed waiver indicating the ex-employee's willingness not to sue or take any legal action, a promise not to be critical of the company or to speak public ally about the matter, and the company got the matter handled cheaply and quickly. It was not distracted or encumbered by the matter. The employee that filed the allegation in the first place, she didn't have to deal with the offender because he is now gone. She also avoided the pain of public testimony in a trial either. Win, win, win.

Mediation or recovery is not possible in all situations. It won't work if one party only wants to punish the other party. There are other reasons why it could fail. Luckily, the reasons it could fail are limited. Besides, if it does fail…you can also litigate.

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