Lawsuits are easy, mediation is hard!

Lawsuits are easy, mediation is hard!

Please allow me to indulge myself for a moment and take you into some of my personal discussions with my friends, neighbors and business associates. Frequently, these conversations occur on my back deck with a cold beverage of choice in each of our hands. As may occur with many of your conversations, these discussions can migrate to the problems of the world and how, if we were in charge, we could solve them. Interestingly, a common theme in many of these discussions seems to center around “personal responsibility.” One of the common solutions that we all seem to agree on is that people need to have more of it. Fathers need to be more involved with their children, employers need to be more involved with their employees, citizens need to take more responsibility for their civic duty, and so on…

Why do I share this with you?

When we have a dispute with someone, we all know that must face our own problems.  We know have to take responsibility to solve it and we know that we have to face, at a personal level, the other person with whom we have a dispute.

But, you see that’s a big problem. By the very definition of a dispute or conflict it involves emotions. It involves anger. I’ve yet to see a dispute in which the parties weren’t angry at some level. Frankly, most problems that are not emotional get solved fairly quickly and don’t become “disputes”. The fact is, we love our anger. We hold onto it. We embrace it. To some extent, it makes us feel alive and deludes us into thinking that fighting is the right things to do. While sometimes is appropriate, in almost all circumstances it is not. Anger distorts our thinking process. To quote Mark Twain:

” Anger is an acid, that can do more harm to the vessel in which it is stored than to anything on which it is poured” 

When I grew up as a young boy, John Wayne was my hero. He was tough. Nobody messed with him and everything in John Wayne’s world was crystal clear – right or wrong. He made things simple and understandable:

“I won’t be wronged, I won’t be insulted, and I won’t be laid a hand on. I don’t do these things to other people, and I require the same from them.” “Out here, due process is a bullet!” *

Now, I truly loved John Wayne and the world that his characters created. I wish we could all live in that world. But we don’t and we can’t. However, our culture has taken on a John Wayne mentality. We are not going to put up with **** from anybody. We want to handle things as if everything is crystal clear – as was in John Wayne’s character’s worlds. This “John Wayne Syndrome” is not a male or female thing, or even a generational thing, it has become an attitude that prevails throughout our entire society. We are more divisive, defensive, and derogatory towards others than at any time in our history. We see it today in our politics, in our divorce rates and our overloaded court systems. We see it in our online social media bullying and our crime rates. We see it everywhere.

But, to bring this talk back home, we see it in how we handle our own personal disputes. We have come to believe that “compromise” is a dirty word. We take our positions to the extreme in order to counter and defend ourselves from the other person’s position and not actually listen to the other person – we already know they are wrong  – why should we listen to their bull****?

Furthermore, we rarely acknowledge to ourselves, much less in public, that we had any responsibility at all in the problem that exists. We’ve been taught by our attorneys: “Don’t admit anything. Don’t say anything.  Don’t speak.”  Well, they are right – That’s a great way to generate lawsuits….  Not so good for solving problems.

Lawsuits are easy – Hand the problem to a lawyer and write a check. You don’t have to really acknowledge responsibility – just tell your side of the story.  The lawyer will “advocate” (ie. fight) for you. You don’t really have to face the other person and if you do – it will probably be months in the future.  It’s easy.  But, it comes at a very steep price. You pay in time. You pay in money, you pay by holding on to Mark Twain’s’ “acid”, and you pay in the very strong likelihood that you will not end up with a decision with which you completely agree.  Yes, sometimes, judges do make bad decisions.

Mediation is hard. In mediation, you confront issues more directly. You aren’t “putting off the problem” until later (ie. – avoiding it).  You’re handling it, now. You communicate with the opposing party and actually try to resolve the problem. You have to listen to them.  Even worse, in mediation, you are probably going to have address the problem much sooner than in court – while you’re still holding tight to all that anger!  Wow – That is hard!

But, handling your disputes directly… and doing it quickly, isn’t that really what we’re talking about on my back deck when we’re discussing personal responsibility? I think so.

Yes, mediation is harder to start than a lawsuit. But, it’s how you handle things if your really want to solve the problem – quickly and efficiently!

 Choose mediation first!

*- J.B Books in The Shootist 1976, and Colonel Mike Kirby in The Green Berets 1968

A Mediation Manifesto

Disputes and disagreements are a part of life. They are a part of business. They are inevitable – a natural course of interacting with friends, neighbors, strangers and transacting business. Disputes are not something about which we should be ashamed or embarrassed. If we don’t have disputes, we, as humans, are not interacting, growing, engaging in commerce or exchanging ideas. What has become troublesome in today’s world is how we address and resolve those disputes. The problem is that the current approach to settling disputes is to funnel these disagreements to a system that was never designed to handle the majority of types of disputes that it is being asked to handle.

In the past, civil disputes and disagreements were handled at a local, or community, or family level. This venue supported the possibility that those addressing the disputes had more understanding of the problem. The dispute would be aired, all parties involved would be consulted and a settlement would be reached. This frequently involved a tribal elder, a religious leader, a respected family member, a community leader or some other person that was considered to be “fair” or “neutral.”

But, that process is no longer the norm and we have been channeled into a litigation system which is no longer effective for most civil disputes. Our judicial system is extreme – extremely lengthy in time, extremely expensive and, due to an extremely rigid set of rules and regulations, frequently arrives at arbitrary decisions that are not beneficial or desirable to either party. Furthermore, since these arbitrary decisions are not necessarily satisfactory to the parties, the next step, collection or implementation of the judgment, becomes an entirely new problem for the parties.

For many years, the concept of alternative dispute resolution has been discussed and, to some extent, has achieved a foothold in our legal system. But, unfortunately the promotion of mediation by the existing players in our legal system is, at its very heart, a conflict of business interest and contradictory. In other words, lawyers, just like any other business professionals, are not going to refer their business income to someone else or to some other process.

To be clear, this is not to say that our existing legal system is completely broken or irrelevant. It is not. It serves a critical and fundamental service to our society. But, our judicial system is designed to handle bigger issues, criminal issues, constitutional issues, major and complicated, large financial issues. These are not the issues that most of society is bringing to our legal system.

So, we all acknowledge that our legal system, for most of us, is not efficient for the majority of the kinds of civil disputes that we, as private citizens and business owners, have. Even the judges and administrators of our judicial system agree that the system is overloaded with cases it is not designed to handle. We all know it. We all talk about it. But, it seems as if we are hoping that, somehow, it will simply correct itself. It will not – no more than the proverbial fox will control itself in the henhouse.

However, we can make it better – and we can do it ourselves! We have reached the time in our personal and business environment that it is incumbent upon each one of us, as individuals, to first look at alternative dispute resolutions such as mediation when we have a problem. It’s faster, less expensive, and reaches a conclusion to which all parties agree and therefore, the agreement/solution is more likely to be implemented. Furthermore, it allows our existing legal system to concentrate on the types of cases for which it was originally designed.

So, what should you do? It’s actually quite simple. The next time you have a problem, a dispute, a disagreement, a misunderstanding – do not call an attorney. Call a mediation service. A mediation service should now be the “go to” move for any of us when we have a dispute.

This does not mean that we cannot ultimately go to our current judicial system if we do not achieve an acceptable resolution. That is the beauty of mediation. Mediation is not binding unless both parties choose it to be so. But, if the majority of private citizens and business owners handled our disagreements through mediation, we would all achieve a faster, less expensive and more satisfying result while at the same time improving the efficiencies of our current judicial system.

Choose Mediation first!