Robbins: Why litigation is the last resort in legal disputes
There are four ways to resolve disputes — legal disputes at least.
First, there is good ‘ol hagglin’ or, dressed up a bit, negotiation. Haggling or negotiating are pretty much the same thing. One way to think of negotiation is as conducting a business transaction. It is to deal with another person in the same sort of give-and-take way as a purchase and sale. It is to bargain or trade with another, to enter into an agreement, bargain, or compact.
A little horse trading is often the best way to resolve a dispute. It is usually the cheapest, the most straightforward, lets the least bloodshed, and, at least in theory, can come to a resolution quickly. Everyone is familiar with the push-and-pull of negotiating a good deal, and the principles apply to law as well.
If negotiation fails, the next step up the legal ladder may be mediation which is a process whereby a neutral — most commonly a retired judge or experienced attorney — will try and help guide the parties locked in a dispute to a mutually acceptable (if not always fully satisfying) resolution.
The secret sauce of mediation is that the neutral — the mediator — cannot compel any particular result. It is up to the parties themselves to reach an accord. What the experienced hand of the mediator does is man the tiller of the dispute, tacking first this way and then that in hopes of bringing the parties to their own resolution. More times than not, if both parties are earnest in their desire to lay down the arms of their dispute, mediation has a successful outcome, the differences between the parties can be bridged, the agreement can be reached, and the whole mess can be put to bed.
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Like Dr. Seuss’s Little Cat A and Little Cat B, next is arbitration. Unlike mediation in which the mediator’s role is limited and she is more like a tour guide or captain to the dispute, the arbitrator (or, as I prefer, “arbiter”) is in the immoral words of George W. Bush, the “Decider.”
The reason an arbiter may be one or the other of the Good Doctor’s hats is that arbitrations come in two flavors: binding and non-binding which, as the Latin has been excised from the terms, is pretty commonsensical.
In non-binding arbitration, the arbiter sits as a surrogate judge. She listens to the evidence presented — which is presented much as if in a trial — makes various rulings and, after all the evidence is presented, makes a ruling. Roy wins, Siegfried loses, or something like that anyway. But here’s the catch… non-binding arbitration is, well… non-binding. Unless the parties want to avail themselves of the judge’s wisdom (and, as in mediation, most times arbiters are either retired from the bench or else are well-seasoned attorneys), the parties can fold up the tent and with a hearty “fair thee well,” traipse off into the thickening morass of their dispute without a resolution.
But all is not lost!
Often the process of arbitration, even if non-binding, gives the parties a window into their dispute and what may be a preview of things to come if they were to proceed to trial. Often, that is enough to pull fists from pockets and shake hands.
Little Cat B is binding arbitration which is essentially the same as non-binding arbitration but with one substantial kicker. When the Decider decides, as the name implies, both parties will have agreed in advance that they will be bound by the arbiter’s decision, the same as if the gavel had come down in court. In this instance, the arbiter may be thought of as a “private judge.”
Why, you may be rightfully asking yourself, would disputants hire a private judge rather than proceeding to court and a public judge since, as the name implies, a private judge is “for hire” whereas a “public” judge is paid for on the taxpayers’ dime? Well … arbitration can be cheaper overall when considering the cost of experts and attorneys, one generally gets to arbitration faster than one gets to court. And if time is money, too much time spent in litigation matters drains the wallet.
Last on our hit parade — and it rightly should be last — is litigation. Believe me, the last place you want to be is in a courtroom. Not because courtrooms are inherently unpleasant places, but because it means that all efforts to resolve the matter amicably and more on terms that may be acceptable to you have expired. Litigation is the last resort but is a necessary one at times and in proper circumstances.
The lower on the food chain of this ladder, the better is the chance of resolving matters on your own and moving on. But when negotiation, then mediation, and perhaps arbitration falls, the court stands ready to decide what you have, unfortunately, failed to work out on your own.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, 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 at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.