Can anyone’s initial encounter with our civil justice system possibly originate from a wellspring of happiness? Or is it more like a collision born of grievance, delivered or received? After thirty-five years of law practice, the only happy litigants that I’ve encountered can reliably be identified as insane. Including the lawyers? Sometimes.
Is there any aspect of litigation that is objectively capable of producing happiness? If there is, and there is inescapable doubt, it may be mediation. Mediation? Why or how could mediation effect happiness? Well, mediation can’t create absolute happiness. However, when operating at an optimal level, for at least one party to a mediated settlement a litigant can feel validated by a settlement decision that they, rather than a judge or jury, determined. If there is a “happy” aspect to this, it may resemble emerging from a directionless, dense fog into brief sunlight.
For sensible lay participants the intricate and tedious procedural aspects of civil law are often slow and inscrutable. Lawyers are rarely able to offer meaningful reassurance about a system where decisions are controlled by judges and juries. Our civil justice system is far more art than science with unpredictable outcomes. Further, participation, whether voluntary or forced, comes with a high financial and emotional cost. At times, one or both of these costs are ruinous.
At the very least the availability of mediation affords parties the possibility of a civilized exit from legalistic chaos. Mediation can offer a face -saving opportunity to gracefully end a lawsuit that discovery has shown to be either meritless or strong but with no practical possibility of financial recovery against a bankrupt opponent after the dust settles.
Equally important, mediation affords parties a chance to be heard by an experienced, impartial and informed mediator who may offer a path to resolution that was heretofore obscured by the din and tumult of advocacy. The simple act of being heard can be constructively disarming and remind litigants of what really is important beyond the uncertain legal arena. The ability to move on and away from the mire of litigation, whether personal or in a commercial setting, should never be underestimated.
But, happiness? Well, mediation, alone among the adjuncts of civil jurisprudence, may represent the closest vehicle capable of delivering a vestige of happiness. For that to happen, however, the parties must approach mediation with a willingness to consider compromise. And, there must be in place an able mediator who is able to provide necessary and constant informed and impartial direction.
Gregg Bertram M.A., J.D., LL.M. is the President and Founder of Seattle-based Pacific ADR Consulting. He is one of the most experienced and successful mediators in the U.S. Gregg and Pacific ADR's panelists mediate and/or arbitrate in every area of civil litigation at the highest professional level.