Expert: Timmy Chou - 8/23/2011

Question
Mr Chou, Thank you for volunteering your time on "All Experts". I'm part of a dispute that is very emotional. I am seeking therapy to keep my emotions in check, but my soon to be ex-spouse decided divorce is better than therapy. If we don't do mediation for which she also is refusing, both of us will spend a lot of money, and I will be forced to defend myself; which will get ugly. I've already spend in excess of $20,000. That is a staggering amount of money over emotions. There is no reason it has to go that far. This is just senseless.

What is an over-the-top method to encourage someone to go to mediation?

Thank you.

Answer
Thank you for your question, so sorry for your continued troubles.

If you have looked at some of my previous answers you may know that I always advise questioners that mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.  Sounds like you have some experience with mediation and understand the process.

Here are a couple of ideas to think about for you.

1.  Nearly 90% of disputed cases will eventually be settled in advance of a trial.  Therefore the question is not usually IF you will settle, it is WHEN and at what COST.  Intelligent people will figure out that a negotiated settlement will be far better in the long run and choose to get engaged.  

2.  For uncooperative people I will usually want to know what their next best alternative is to a negotiated settlement, and if that is really where they want to go.  Obviously the next best alternative is a litigated settlement along with all the costs, time and unreliability that comes with tossing your fortunes to the whims of the court.   Again, sensible people (with ethical legal representation) recognize that better outcomes are possible with mediation.  

3.  You can also look at what your "hard ball" options are.  Possibly your counter-party is not clear about YOUR ability to make their lives miserable with equally as aggressive and destructive legal strategies.  You may have some ability to draw a picture in more graphic terms that spell out what would be come necessary if you are forceably placed in a position  where your only alternative is to use your best legal tool set.  Once unleashed, these forces are very difficult to restrain and often future opportunities for a sensible mediation are destroyed by one party's foolish legal aggression.  

These are some ideas.  Feel free to follow up with additional questions.

For your general information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!


Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships

Negatives of Arbitration

It's often a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

may not reach a binding decision
unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final

Negatives of Litigation:

waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record