Win Lose MediateHave you ever reached a point in your dispute with a contractor or another professional or a family member when you have said: “I’ve had it. I need a good lawyer. I’m going to sue!”

As a lawyer with over 40 years in practice, let me offer a word of advice: Wait.

Take a deep breath. Before you sue, consider mediation.

Before you sue — which, in effect, means turning yourself over to a lawyer who will then direct and control all your communications — take stock of the power you yourself have to determine the outcome of your dispute.

Mediation is the key to using that power wisely to reach a resolution that would in all probability elude you in our legal system as it is today. The data tells us that this is so. Fewer than 5 percent of the millions of cases filed annually nationwide ever see a final resolution in the courts. And those resolutions are often reached on the steps of the courthouse after years of bruising battle, after relationships have been damaged beyond repair and after a great deal of money, energy and angst have been expended.

The data from the thousands of cases mediated over the years here in Hawaii tells me the same thing: Mediation makes sense.

Unlike our adversary system of justice, which is designed to discredit the other party and secure a “win” at all costs, the mediation efforts my colleagues and I have engaged in have shown us that it is by far the better way to resolve disputes. We have seen first-hand how the informal, loosely structured process of mediation draws out perceptions and hopes, tests them against reality, and lowers the emotional temperature of both parties. That process, one that encourages, not stifles, communication, is far more likely than litigation to lead to a resolution.

From corporations like General Mills to trade groups like the Association of General Contractors, the benefits of mediation have led organizations to include a “mediate first” clause in all their contracts before resorting to litigation. The beauty of this is that the option to litigate or arbitrate remains available, if mediation fails.

But it seldom does. That has been my experience when mediation has been undertaken in good faith. It usually works.

From corporations like General Mills to trade groups like the Association of General Contractors, the benefits of mediation have led organizations to include a “mediate first” clause in all their contracts before resorting to litigation.

I was once faced with a seemingly intractable dispute that involved delays in construction that hurt both the landlord of a shopping center and his anchor tenant, a restaurant. Both were hurting from lost revenues. Through mediation, we found a way to address the needs of both the landlord and the tenant. The landlord was persuaded to purchase a substantial number of gift certificates from the restaurant. This gave the tenant a much-needed cash infusion and the landlord gained a marketing tool that allowed him to entice more customers to the entire shopping center.

A clear win-win.

The adversary system, even on the occasions when it reaches resolution, is tough on the pocketbook — and less than satisfying to the soul. It is simply based on one party being 51 percent right. Litigation sends the other party — who presumably is 49 percent right — away empty-handed. Against that scenario — and the reality of our overburdened courts — it makes great business sense to give mediation far greater attention than we have to date.

This article originally appeared on Pacific Business News.

Gerald Clay Honolulu Attorney Hawaii Law Firm
Gerald S. Clay

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