Mediate or Litigate? Sometimes the Best Approach Isn’t Always Clear. Don’t Get Hammered.

Disputes between individuals are not always easily defined.  Often, there is a long history with multiple factors and nuances at play.  Emotions associated with the issues can be so overwhelming that the people involved can barely think straight, much less come up with a reasonable, logical solution to resolve the dispute.  All that is clear is that professional help is needed… and fast.  This is where many become confused about the exact type of help that is needed.  Should you hire a lawyer?  A mediator?  Both?

In cases like these, particularly in matters related to divorce and family law or to business partnership disputes, litigation might seem like the only option.  After all, how do you convince the other party to settle down and handle the disputes like an adult, if a calm, rational discussion seems to be as likely as stopping the waves of a Category 5 hurricane?  So even if you prefer to mediate, do circumstances force you to litigation?

Professionals with skills and experience in only one kind of dispute resolution may not be able to help you figure out the best approach, and therefore the right professional.  You’ve heard it before, and it’s true: To a workman whose only tool is a hammer, everything looks like a nail.  Similarly, when a litigator who is not also a mediator hears about your dispute, he or she has litigation skills and will see all the good reasons why you should litigate.  For the litigator, that’s the right answer.  Hammer, nail.  If you speak to a mediator with no experience as a litigator, that professional will see all the good reasons to use mediation for your dispute.  And for the mediator, that’s right, too.  Hammer, nail.  Those professionals can tell you — with every intention of helping as best they can — what for them seems best for you.

But they don’t have the overview and perspective, the range of choices, to help you figure out what for you is right in your current dispute.  That’s why it’s important to speak with an attorney who is fully experienced in both litigation and “alternative” dispute resolution, a professional who is capable of helping you in either approach; who can help you think through which way you’d like to head in resolving your dispute; and who can stick with you through any resolution.

Albert Einstein once said, “In the middle of every difficulty lies opportunity.”  The opportunity, although not always glaringly obvious, can usually be seen more easily by a third party who is non-partial and non-biased in the situation, and who has a varied range of skills to help you.  If there is an opportunity for an attorney to mediate a dispute rather than litigate it, a good mediator/attorney will readily see this, and probably very early after being consulted.  Even if you went in expecting to hire a lawyer, you might leave the meeting thinking that a mediator could be the better answer.  Indeed, it happens regularly that people coming to see me as a lawyer decide instead on mediation.  Sometimes, people seeking me out as a mediator come to realize their better bet is to use me as a lawyer.

There’s a saying in the dispute resolution field that an ounce of mediation can be worth a pound of arbitration and a ton of litigation.  Sometimes, it takes that whole ton of litigation to get a matter resolved.  That’s fine; there is lots of satisfaction in winning.  But other times, a different approach works just as well, costs a lot less, and has a much better impact on the futures of the parties and their relationships.  If mediation is possible, it’s worth a try; litigation can always be used as a last resort.  Choose wisely.