Litigation Alternatives

ALTERNATIVES TO LITIGATION

I believe that most people, when provided with a meaningful alternative, prefer to resolve their differences without having to pursue the traditional routes of litigation and trial. There are a number of alternatives to litigation. Some of those expressly recognized by Colorado statutory law include: mediation, arbitration, med-arb, settlement conference, special master, summary jury trial, early neutral evaluation, fact finding, multi-door courthouse concepts. They are defined at C.R.S. 13-22-302. Some of these methods can be utilized in lieu of or prior to litigation. Others assume that a lawsuit has been filed and is pending.

MEDIATION

Mediation is a process in which a trained neutral third person, the mediator, becomes involved in dispute negotiations for the purpose of helping the parties to reach their own solution. Unlike a judge or an arbitrator, the mediator does not “decide” the case or the situation. The parties do. The trained mediator helps them to get there, and to put down in writing the agreement that they reach.

Mediators are impartial. They do not represent or act as lawyers for any party. They do not advocate for any party or advise any party of their legal rights and duties. This is true even of mediators such as myself who were or who are are attorneys. The parties may, if they choose, consult with or be represented by counsel of their own choosing in a mediation.

With few exceptions, what is said in mediation is confidential. This encourages the parties to speak freely. It is part of what makes mediation work. If the parties agree, they can, in many instances, add to what will be kept confidential.

For mediation to be truly successful, it must be voluntary. It usually involves some compromise from all of the parties involved. If you believe that the law and the facts are black and white, or, you have the attitude “my way or the highway” and are not willing to budge from that position, you will probably be wasting your time in mediation. However, if you are flexible and open-minded, and recognize that a judge, a jury, or an arbitrator may not view the evidence or the law the same way you do, you may find, as have many others, that mediation is a better method of dispute resolution in your particular case.

POTENTIAL BENEFITS

In my experience, and that of others, some of the potential benefits that can be derived from mediation include the following:

  • It often costs less in terms of
    • money
    • time
    • effort
    • involvement
    • emotion
  • The mediation process is tailored to identify and deal with your specific interests.
  • You can often be more creative than you can in court or arbitration – not only in terms of the result, but also in terms of the process, the timing, and potential solutions.
  • You control the outcome. Not a judge. Not a jury. Not an arbitrator. You never know what a judge, a jury or an arbitrator is going to do. They may not see things the same way you do. They may decide against you in whole or in part. More often than not I have seen people disappointed by the decision made by a court.
  • The mediation process is informal and private. You meet in an office, or in a conference room. Not in a public courtroom.
  • You can generally speak more fully and freely than you can in a courtroom.
  • With few exceptions, what is said in mediation is confidential.
  • You can generally get your dispute resolved more quickly through mediation.
  • Since the case is decided by the parties, the parties can decide to pursue other avenues, such as a lawsuit, so long as it is timely, if the mediation is not successful.
  • You can learn things that you may not have known before.
  • You can get a better understanding of your case and how others see it.
  • You might learn things that can help you to deal with and resolve disputes in the future.
  • You have a better chance of preserving relationships with others, including clients, through mediation than through adversary proceedings like litigation and arbitration.
  • You can also use mediation while a lawsuit is pending. You can use it for specific issues – such as discovery – or for your whole case.
  • There is a high success rate with mediation if the parties come voluntarily and are committed to getting the matter resolved. I have seen average success rates stated as 70 and 85 percent or higher.
  • Many people find it a much more pleasant and satisfying way to resolve their disputes.
  • People appear more inclined to follow through with an agreement that they helped design, rather than one that is dictated to them by a judge, a jury or an arbitrator.