Vail Law: Mediation and arbitration are big parts of settling various legal disputes (column)
There are better ways to resolve an argument. And, when you get down to brass tack of what a lawsuit is; it is a tiff that — for one reason or another —the parties have proved unable to resolve on their own. By the time they get to lawyers, what started out as a disagreement — often, a simple dispute — has escalated to become the parties’ own private war.
Lawyers make their living on disputes.
Many are the times I have shared with my doctor friends that my job security is greater than theirs, that medicine will cure all diseases before people learn how to get along. Maybe it’s simplistic but much of what attorneys do is to help resolve disputes or, in drafting instruments — contracts and the like — they anticipate what disputes may one day arise and try to head them off.
Don’t get me wrong; there is nothing in God’s green universe wrong with a lawyer helping to untangle what may have become a shooting match. And there is nothing anyone could condemn about peering into the future to see, and hopefully avoid, what roadblocks may arise. I know I am one, but lawyers often get a bad rap. Most times, they are sincerely looking out for their client’s interests and it is the client, not the lawyer, who has gotten caught up in a tangled web. A lawyer is an advocate and, ultimately, a peace-maker.
But there are all sorts of ways to get to an armistice. Some wars are cold and some are “hot.” There are shooting wars and wars of words. Hopefully, with skill and finesse, a lawyer tries to keep the bloodshed to a minimum. If the dispute exacerbates, it should not be the lawyer who is the one pushing the sled down that particular slippery slope.
Paths to resolution
Rather than sharpening knives for battle in a courtroom, there are other exits on the path to resolution. Many years ago, a wise old judge pulled both lawyers in the chambers on the cusp of a nasty trial and, in exasperation asked, “Why do these people want me to resolve their problems for them?” He laid his hands, palms up on his desk.
Both lawyers resisted saying, “Because… um… you’re the judge.”
Before we could be snarky, the judge went on, “These are the most personal issues these people have. I know nothing about them; what may be important in their lives. At trial, I will learn this much about them.” He held his forefinger as close to his thumb as he could and still permit a slender sliver of light to pass. “Go talk to them,” he commanded us. “Tell them to try once more, to try and work it out.” As the coup de grace, he added, “They know what’s best for them. I can’t and never will.”
Out we marched to try once more to heal the rift between the fractured parties.
The first arrow in the quiver of resolution should be negotiation; what can we work out between us, hopefully before things escalate and positions become entrenched? If, after earnest effort, that fails, there is mediation (“med” — pronounced mead, like the fermented honey drink), arbitration (“arb”), and “med/arb.”
Let’s vivisect them each.
Mediation is a process by which a neutral party — usually a retired judge or experienced attorney — helps guide the parties past the treacherous shoals of their impasse towards an acceptable resolution. The mediator is a facilitator but does not decide who is right, who is wrong, or what the appropriate resolution should be. Instead, he or she listens to both sides, shares with each the benefit of his/her legal knowledge, and helps each shape a workable compromise.
Giving, and getting
You will notice two key words in the preceding: “acceptable” and “compromise” and they are kissing cousins. Unless both parties come to the party with the intent of giving at least a little ground, most times mediation is doomed to fail. It is axiomatic among attorneys that a good compromise means that both parties leave equally unhappy. Perhaps that is a little jaundiced; it can be equally maintained that both leave equally happy.
Arbitration is a horse of a different color. In arbitration, the neutral actually decides. He or she hears the dispute, evidence is presented (although generally less formally than in a courtroom), and the session winds up with the arbiter deciding who is right, who is wrong, and what the appropriate remedy should be. Arbitration may be advisory and non-binding or binding as the parties may decide — in advance — between them.
While it may seem that an advisory/non-binding arbitration is a waste of time and resource, not so fast. The opinion of a retired judge or senior attorney who has been in the trenches for decades may be a fair gauge of how the court will go if the matter ultimately proceeds to trial. That, in turn, may inform the parties’ reconsideration of the matter in dispute and foster renewed negotiation, this time with new eyes.
A third option is med/arb, which goes like this: The parties submit the matter to a mediator/arbiter. A first, the neutral wears his/her mediator’s hat and tries to guide the parties to their own resolution. If that fails, however, the mediator switches hats and, as the parties have agreed beforehand that if they could not resolve the matter on their own, the neutral will as George W. Bush once famously declaimed, will be “the decider”.
If the agreement is reached at mediation, the terms are written up and entered with the court. If submitted to binding arbitration or med/arb, an arbitration order issues and is likewise submitted to the court of its adoption. If, however mediation and/or non-binding arbitration fails to end the dispute, hi-ho, hi-ho, it’s off to court you go.
Among the other lessons I have learned after nearly 35 years on the legal battlefield, one of the pithiest is this: With cool heads and a little guidance, most times disputants stuck in a legal quagmire can work things out themselves and in a way that may prove more satisfactory than a slugfest in a courtroom. And, most times, it is worth the effort to give “informal resolution” an earnest try.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
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