The legal ladder from negotiation to litigation
Vail, CO, Colorado
Say you have a problem. In the spirit of this column, let’s say it’s a legal problem. Say to move on in your complicated life, you need to work it out. Well, law is all about working it out ” one way or another ” with either more or less facility and more or less acrimony and entanglements.
There are ways to solve a problem, then there are ways to solve a problem. Think of it as an escalating litany of horrors and with each step up the horror scale, you can generally expect increased time, emotional currency, sniping and expense.
On the first rung is negotiation, or resolving a problem without the intervention of a neutral party like a judge or mediator. Things can be negotiated between the parties themselves or between the parties with the aid of lawyers. This is problem-solving at its finest and, in most instances, its cheapest.
Next up the ladder of legal terrors is mediation, which contemplates a “referee” who, while not making the decisions for the warring parties, helps guide them toward a resolution. Most times, but not always, a mediator is either a former judge, an attorney with experience in the area of controversy, or a person with a particular expertise.
Mediation is non-binding. In other words, as the mediator does not make the decision for the parties, if they cannot reach agreement, terms of resolution of the dispute may not be imposed upon them. If, however, the parties come to terms and reduce the terms of their agreement to a written agreement signed by each, the settlement agreement becomes a binding contract and may be enforced in the way of any other contract.
The next rung on the ladder is arbitration. In arbitration, someone other than the parties reaches a determination as to how the dispute should be resolved. While arbitration is generally conducted more informally and at less expense than court proceedings and is conducted outside of a court of law, the ability of the parties to make their own decision is given to a de facto judge. “Arbitration” is an arrangement for taking a dispute to an impartial third person (generally chosen by the parties to the dispute) who, after a hearing at which both parties have an opportunity to be heard, decides the outcome.
Mediation and arbitration are lumped together as forms of “Alternative Dispute Resolution,” and engaging in of one or the other is often a contractual term which spells out, in advance, how disputes shall be resolved. Alternative Dispute
Resolution is more and more frequently ordered by the court. Where an action is filed, the court may order that the parties must first make a good faith attempt to resolve the dispute.
The last bloody rung on the ladder of dispute resolution is “litigation” which is, in almost all instances, the most expensive, the most extensive, the most time consuming and the most polarizing. Litigation is the formal process before the court by which evidence is presented, verbal wars are waged and, fashions a decision.
While there are compelling exigencies promoting a “sue the bastard” approach to righting wrongs, checking your hostilities and scorched earth instincts at the door and coolly appraising the most effective, least contentious and most economically expedient means of resolving a dispute is often the best course. While negotiating, mediating and/or arbitrating usually involves at least some compromise, in the last analysis, the results are often the most satisfying and hold the best hope of preserving your sanity, your pocketbook and perhaps even a relationship that resorting to litigation will almost certainly injure or extinguish.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He can be reached at 926-4461 or at firstname.lastname@example.org.