Predictable Litigation Results

The results from litigating always fall into one of two outcomes: either one party wins and the other loses or both parties lose. This is because litigation is an adversarial process where parties seek to beat one another. And, both parties may lose if neither gets the entire outcome they wanted.

There is always a loser in litigation.

The only possibility for an outcome where both parties win is when they mediate the issues. In mediation, there is no possibility of both parties losing, or of only one party winning. They either both win by reaching an agreement or they walk away to fight another day.

There is never a loser in mediation.

I have been in situation where one party simply refused to bend. Every possible option is met with obstacles. Sometimes this strategy pays off in terms of the outcome of court, but often it is devastating..

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Christmas Conflict

The words Christmas and conflict really do not belong together and yet, the holidays seem to offer lots of opportunities for conflict. Family members come together, expectations run high. Time runs low. Stresses increase. It is an odd thing that the celebration of the birth of the Prince of Peace is filled with stress.

Sometimes these family conflicts became entrenched somewhere along the way in such a manner that hurtful reactions are habituated. In times like that, an outside professional may be the only way to start a new, peace-filled and restful tradition of family fellowship. Mediation is not just for legal disputes; mediation can be used in any situation and any relationship where it appears an impasse has been reached (AND it is cheaper than therapy!).

If your holidays are marked with strife and there seems to be no way past it, offer the gift of mediation to those with whom the conflict arises.

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What cost peace?

Peace does have a price. The degree of peace we have experienced on our own soil as a country was paid for with the lives of soldiers in foreign battle fields. I do not mean to belittle the terrorist attacks that have occurred here, but in comparison to most other counries, we has seen relatively little carnage in our homeland.

Just like on the macro scale of war, peace on the micro scale of interpesonal relationshp bears a cost as well. From my vantage point as a lawyer who has served as counsel both to families and for businesses, many are unaware of cost of peace or, more importantly, the value of peace. I suggest that we paid the high cost of peace because the cost of war coming to us here at home was far greater.

One way of looking at mediation is that it is bringing the much higher future costs of conflict into the present so that people can pay the lower cost for peace. Another way of expressing this is when people (or organizations) recognize long-term consequences of unresolved conflict, then they become willing to give up positions and begin to reach resolutions.

A simple, yet effective technique in helping this recognition along is “playing it forward”. When a mediator finds a party entrenched on a particular position, they can take them aside and ask them what this conflict will look like a year, two years, and five years down the road. In other words, what price will their position cost. It is using imagination to fast forward the movie of their life to later, worst case scenes. If they are willing to pay the price they imagine, then one needs to go on to other issues.

Most likely, though, the person has been so target locked onto this one position, that they really have not considered the long-term cost. At this point, the mediator can move from the position to the underlying issue. That is where creative ideas can come in that cost far less than what they just saw in the alternate future.

A classic example of this in the family law realm is when parents litigate over timeshare of their young children. Each party is understandable driven by the prospect of losing out on precious moments. But, when the matter is played forward and they imagine life with teenagers, then the parents can begin to look for other ways to keep one another in the loop on milestone events.

This technique is simple enough that anyone can add it to their conflict resolution arsenal. The next time you find yourself locked into a battle with another person, take a breath and play the movie forward. What does that battlefield look like at the end?

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MEDIATION is a COST SAVER

I recently published an article detailing some of the impending budget cuts for the Kentucky courts entitled “Mediaiton is the Future“. As the cost of litigating conflicts rise ever higher to society and litigants, mediation offers substantial cost savings in resolving those very same conflicts.

Mediation makes the resolution of disputes among individuals, within families, within businesses and organizations, between businesses, and with employees within financial reach. I am doing my part in the cost savings offered by mediating conflicts. It is important to me that even people with tight finances are able to access mediation.

Therefore, I offer a sliding fee schedule based on income to make this alternative dispute resolution available. The sliding fee schedule has been available to individuals who are not represented by attorneys. Now, additionally, I am offering reduced fees even when parties have attorneys so long as the attorneys each agree to a commensurate fee reduction to their own rates for the mediation session.

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MEDIATION is the FUTURE

The Kentucky court system experienced substantial funding cuts back in 2008. According to Chief Justice Minton, those cuts dramatically reduce the overall budget of the court system by 49% since that time. Despite this, Kentucky courts continued on with minimal staffing. In some counties, court dockets are so backed up that it takes several months for a trial to be set.

No wonder judges routine order parties into mediation!

The budget from the Kentucky House of Representatives proposes cutting an additional $36.3 million dollars next year and $40.6 million for the year after that. Those are huge cuts that will only impair the courts and make it take longer and longer to get lawsuits settled. In an email sent out on March 16th, Justice Minton asserted that, “Our ability to attract high-caliber, experienced judges to the bench is becoming compromised.”

Do you want to wait for months for your case to be tried by a less than high-caliber or inexperienced judge?

Mediation brings two or more parties together who have a dispute that they cannot resolve on their own and facilitates candid discussion of the issues and options. A neutral third-party, trained in conflict resolution, provides a forum for airing grievances in a confidential setting in order to move beyond entrenched positions to address the real issues. Once a skilled mediator has helped the parties get to that place, they provide the framework for the parties themselves to find novel answers, compromises, and mutually beneficial solutions.

Mediations is a here and now answer to the strain that the courts are under. And, the financial cut-backs show no sign of reversing. That means mediation is the future of conflict resolution as litigation becomes increasingly time consuming and expensive. A mediation can be scheduled within days or just a few weeks from the time parties agree to sit down together.

Sure, mediations do not always successfully resolve every issue. But, neither do trials. Consider this prior post entitled “Litigation Disillusionment”  revealing other shortfalls to litigation. However, progress has occurred in every mediation in which I have been involved and nearly all of those matters ended up resolving fully without being heard by a judge.

 

 

 

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Mediating Rather than Litigating

In my prior post, The Myth of “Uncontested Divorce”, I introduced the concept of entering into mediation well before a divorce or separation action is filed with the courts. In fact, mediating rather than litigating can be both a cost saving and relationship preserving process before anyone hires a lawyer. I will not reiterate those points again so I encourage you to go back and read that post if you have not already done so.

The process of mediating rather than litigating is simple. Instead of running out and hiring a lawyer right away, one or both spouses run out and find a mediator. The cost savings are instant because the two of you would just be splitting the cost of the mediator if you mediate rather than litigate. There is at least a 90% chance of being ordered into mediation by a Family Court Judge once your divorce action is filed, and then you will be splitting the cost of the mediator AND each party will be paying for their own attorney. That adds hundreds or thousands of dollars to the total expense if you litigate and then mediate.

When you call someone like myself who is both a practicing licensed attorney and a trained, certified family and divorce mediator, you are able to get to the same place that litigation will take you but with less cost and less pain. I am unaware of anyone else in this area offering this, but I do my fees for mediation on a sliding scale based on household income if there are no individual lawyers. Additionally, if agreement is reached on all matters, then I am also able to draft all the proper documents as “scrivener” (scribe) for both parties for a low flat fee. One or both parties can then file the action in a streamlined fashion if they still chose to proceed with divorce.

If a full agreement is not reached when mediating prior to litigating, all is not lost. First, there likelihood of significantly reducing the number of issues in conflict. That means fewer issues to litigate and less cost. Also, you will be able to tell to the court that mediation has already been attempted and so the judge is far less likely to order mediation. So, you will have essentially met one of the standard requirements of the court without paying a lawyer.

The bottom line is that there is tremendous potential in mediating rather than litigating and very little, if any, downside. If you are in the Bluegrass area and wish to engage in the conflict resolution process called mediation, give me a call or shoot me an email.

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The Myth of “Uncontested Divorce”

This post’s title is a bit of an overstatement, and so I want to acknowledge that right at the start. There are a few people who enter into the process of separating or ending a marriage where they are in agreement on all matters. But, my observation time and again is that a divorce involves the tearing apart of two people who have been joined in some way that defies understanding, and that nearly always means conflict. After awhile, an “uncontested divorce” appears mythical. Despite the prevalence of contention when people separate, mediation prior to litigation offers the best chance of minimizing the conflict and the damage.

As a practicing attorney, I have fielded many calls by people asking how much for an “uncontested divorce”. After giving a dollar amount for a truly uncontested divorce, I spend time talking about the dozen different categories covered in the typical separation agreement. Their confidence in an easy, “uncontested” divorce diminishes as they recognize points that have not been discussed and where contention is likely to occur.

I then have to explain the idea of a “refundable retainer” which turns out to be much higher than the uncontested divorce flat fee. Part of that explanation involves hourly billing and the fact that some attorneys inadvertently or purposefully increase the conflict resulting in higher costs. The sad fact is that the single best predictor of the cost of a divorce, in my experience, is whom each party choses as their attorney. 

There is an alternative to this litigator roulette. If both spouses are willing to engage in mediation prior to filing for divorce and perhaps even before retaining a lawyer, they are entering into the most likely scenario of a low-cost and relatively uncontested divorce. They may even emerge on the other side of mediation deciding that they actually are not at that irreconcilable place in their relationship after all. But, they at least experience working through tough issues with relative civility and respect.

In my next post I will give an overview of this “mediation, not litigation” model to arrive at an uncontested divorce.

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