Tuesday, September 4, 2012

Mediation vs. Litigation

Mediation vs. Litigation

I am a proponent of mediation as an alternative to a jury trial for civil suits. Only about 2 % of the suits filed in the USA actually proceed to trial. It should probably be less than 2%, but people can be greedy or represented by irresponsible lawyers or in probably less than 1% of the cases, there is a genuine question of fact.

With regard to trusting the jury system I have just two words – Casey Anthony. Unfortunately, many jurors in the criminal justice world misunderstand the concept of “beyond of reasonable doubt” to mean no doubt what-so-ever.  And, with the civil justice system, which awards money for alleged negligence on the part of a defendant, sympathy often takes precedence over the law. There is also the mistaken belief that some must be responsible for an injury. Few consider that the injured party could actually be responsible for his or her own injuries.

For the last 32 years I’ve work in the insurance industry as a claims representative who investigate, evaluates, and negotiates resolutions of injury claims. While the insurance industry, in general, has an unsavory reputation, in most cases that is unjust and ill founded. The insurers I’ve worked for over the years have always advocated doing the right thing and negotiating fair and equitable settlements of cases that are owed. But, in many cases, nothing is owed. Settlements are predicated upon the experience that juries cannot be trusted. 

That is where a good mediator can make a difference. The optimum resolution for mediation is one in which neither party walks away feeling victorious.  Successful mediators point out to all sides the risks of proceeding to a trial. Most mediators are retired judges who have spent years on the bench and have seen every possible outcome. I can assure you that truth is more bizarre than fiction.

On any given day, anything can happen. It can come down to the fact that one juror doesn’t like the color of somebody’s socks. The legal factors often have no or little impact on the ultimate result. It is gamesmanship, bluffing, how the evidence is presented, the personalities of the persons involved, latent bias a juror may have, empathy, sympathy, and yes, the color of somebody’s socks.

That is why mediation is beneficial. It gives all of the parties involved some control in the outcome – which is always preferential to allowing unknown third parties the right to make that decision.

If you are every involved in litigation, I would urge you to consider mediation as an alternative to proceeding to trial and risking an untenable result – no matter what your role.

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