Keith M Parker, Mediator           (949)887-5893

 

                              WHY MEDIATION?


In more than 25 years representing clients in Southern California I have come to realize

that litigation is an inflexible and extremely expensive method of resolving business disputes.  Far from a prompt process to determine “truth and justice,” as so often portrayed in the popular media, litigation typically becomes a seemingly endless test of which parties (and their counsel) are best able to utilize complex rules of procedure and evidence to prevail.  Discovery and motion practice often are used to test the will and tax the finances of the opposition, rather than to learn facts and narrow issues as intended.  Trial results often turn on the resources available to highly skilled (and highly compensated) counsel rather than on the merits of the parties’ respective positions.  Litigation of business disputes often takes on a life of its own, with attorneys’ fees and costs incurred by the parties routinely dwarfing the amount at issue in the dispute.


Moreover, and often initially overlooked by the parties, there are significant intangible, but very real costs of litigation - the financial burden on a plaintiff who is required to wait for damages and/or benefits to which she is entitled; the loss of productivity of a business because its key personnel are focused on litigation rather than on operating the business; and the physical and psychological toll on all parties because of uncertainty over the outcome of important litigation.  While difficult to quantify, these costs are often more significant to parties than the purely monetary cost of litigation.


Mediation, on the other hand, is a flexible and relatively inexpensive method of resolving business disputes.  Most disputes are amenable to resolution by mediation in a day or two, and an effective mediation can be conducted quite early, often before formal litigation has been filed and certainly before the parties incur significant attorneys’ fees and costs.  Even if an early mediation determines that some formal discovery is required before resolution is possible, mediation usually focuses the parties on specific issues which narrow the scope and reduce the cost of subsequent discovery.  Once such discovery is conducted, settlement is often possible.


Moreover, unlike litigation, mediation is not governed by formal rules of procedure or evidence, and the parties, and not their counsel, are the key participants in the process.  The proceedings are confidential; parties can speak freely, voicing the concerns, suspicions and grievances, well-founded or not, which underlie the dispute, free of the constraints of the formal rules of evidence or the fear that doing so will harm their position.  In this way the “truth” about the origins of a dispute often becomes apparent, which when identified often reveals possible “just” resolutions that might not otherwise be considered.


Finally, and perhaps most importantly, mediation allows the parties to to resolve their dispute in whatever manner works best for them.  Unlike a court, which is typically quite limited in the type of relief it can provide, the parties in mediation can agree on a wide variety of solutions - from payment of traditional monetary compensation in a lump sum, in a series of payments or to third-parties; to buyouts of interests in a business or property; to non-monetary compensation such as amending existing contracts, entering into new contracts, issuing agreed statements such as employment references and/or apologies; and the like.  As a result, in all but the most unusual business dispute, the parties to the dispute will benefit from mediation.