Alternative Dispute Resolution: ‘Tis the Season …. to be Reasonable. (A Christmas Eve Thought)

compromise

“Peace on Earth – Goodwill Toward Men”. “‘Tis the Season to be Jolly”. “Love Thy Neighbor”.  These are just a couple of the sayings that seem to fill the air during the holiday season. In fact, between November and December, people tend to speak more freely to those they don’t know, donations and hours of volunteer work rise in ways unknown and many of us enjoy endless songs, readings, dances and presentations surrounding our religious beliefs of brotherhood, goodwill, peace on earth and tidings of joy. But do we really mean it? If so, wouldn’t we be more open to alternative dispute resolution, including but not limited to settlement, negotiation, mediation and/or arbitration? Particularly with those we’ve personally known, shared good times with and/or love or have loved so dearly? Wouldn’t we think to treat these persons at least as well as we would treat a stranger? My regular walks down the corridors of various courthouses, say no. Disputes with those we know are all too personal, which, during times of litigation, blinds our ability to make reasonable, objective and financially sound decisions. Well, in the spirit of “The Season”, consider these ways to resolve your differences.

Negotiation: a give-and-take discussion or conference in an attempt to reach an agreement or settle a dispute.

Settlement: The act of adjusting or determining the dealings or disputes between persons without pursuing the matter through a trial.

Compromise: an agreement between opposing parties to settle a dispute or reach a settlement in which each gives some ground, rather than continue the dispute or go to trial. To reach a settlement in which each party gives up some demands.

Notice the highlighted portions of each definition.  The clearly show that in every definition, there is an element of give and take. However, many clients have the self-serving view that they will get everything they want at the conclusion of a negotiation, settlement or compromise, when in fact, that would actually be winning. To negotiate, settle or compromise an issue, means that each party will walk away, each having given up something.  In fact, the best resolutions leave each party with less than 100% of their demands, while ensuring that each party has given up an equal share of those same demands through negotiation, settlement, compromise, arbitration, or mediation, to name a few.

Negotiations, settlements or compromise discussions can certainly be done independently between the parties and frankly, sometimes the fewer involved, the better.  However, there are times when a third party might be of assistance for a variety of reasons.  Such as when there is a difficult and complex issue involved; when there might be legal issues and/or consequences that are not easily understood by one or both parties or when the communication, between the parties is so broken, that a neutral third party will be effective in keeping the conversation on focused and track. In these instances, assistance is available through more formal arbitration, mediation and other forms of alternative dispute resolution services.  Those trained in mediation and arbitration can be an invaluable resource toward resolving the issue(s).  These persons can be found on courthouse lists, through an internet search or better yet, by reference from someone you trust.  Mediation and arbitration, while a slightly more formal form of alternative dispute resolution also looks to a more informal way of resolving an issue, rather than proceeding with longer, more protracted and costly litigation.

Mediation is a settlement of a dispute or controversy, by setting up an independent person, between two contending parties in order to aid them in the settlement of their disagreement. Arbitration is the submission of a dispute to an unbiased third person, chosen, agreed upon and designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard. Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties, to a controversy, with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator’s award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator’s decision is usually final, and courts rarely reexamine it.

Whether the resolution is done independently or with the help of a third-party, there are a variety of benefits to resolving any pending legal issue.

1. Resolution will lead to less attorneys fees. When you negotiate, compromise or settle on your own, there are little to no costs. In addition, mediation, is sometimes free, particularly in the District Court systems, wherein the court’s regularly provide free mediators, to discuss some cases prior to trial, in the hopes that the issue will work itself out. On the plus side, like arbitration, even in instances where there will be some costs, it certainly won’t result in the guaranteed hours and hours of additional attorneys fees for court appearances, motions writings, research and telephone calls – Yes, attorneys charge to talk!. So be sure and consider the costs of what you are fighting for as opposed to what you will actually pay out during the fight. Also consider your long term ability to pay for those litigation expenses. Resolution allows you to control the outflow of your hard earned money.

2. Resolution takes less time and energy. Certainly resolving an issue will put the timeline in your hands, and under your control, and not that of the court’s calendaring system. Is there some more important reason that you would like your legal issue resolved sooner rather than later? How much personal and emotional time and energy are you expending during this process?  Is the case interfering with our work and personal life?  Getting the matter resolved allows you to move on, with all phases of your life, all the quicker.

3. Resolution is a great stress reliever. How long do you really want to deal with the pending legal issue? What is it doing to you emotionally, physically, mentally, spiritually? How is it affecting your health or your weight?  What is it doing to the personal relationships involving your family, friends, coworkers and yes, even the relationship you have with your pet? How is it affecting your job or career? Your sleep pattern? Again, getting the matter resolved allows you to decompress, find your future happiness and move on.

4. Resolution provides you with more control of the outcome: Do you really want to stand in front of a strange judge, who you will ultimately feel, doesn’t know you, the other person or all of the facts really necessary to make that all important ultimate life changing decision? Do you really want to risk some important piece of evidence not being considered on a technicality? Have you seen any case on the news, wherein you thought the outcome wasn’t fair? Do you want this to be you? It doesn’t have to be if you take control over the outcome. Resolution allows you to be part of the decision-making process, negotiating the terms that will be the best fit for you.

5. Resolution allows for an opportunity to talk, be heard and understood.  Over the years, acting as a trained mediator and/or participating in mediation for my client, this seems to be one of the biggest factors towards resolution. Even bigger than the issue at hand! So many people feel that the other party is just not listening or that they have simply not been heard or worse yet, that they have been misunderstood.  And can I tell you how many people have been willing to give up some or all of their position for a simple apology and/or acknowledgement of their feelings.  An opportunity to sit down, talk and be heard has resolved many an issue.

6. Resolution allows for an opportunity to discover and realize just what’s at stake. Be sure and really consider what you stand to lose if you are not successful. If you are not willing to lose that person, relationship, dollar amount or other item, then consider resolving the issue to minimize that exposure.  The power is truly in your hands.

7. Resolution provides for more privacy. Court cases are a matter of public record, providing anyone who has a computer or the time to visit the courthouse, with an opportunity to gain a front row seat and bird’s eye view into some of the most personal, private and painful parts of your life. Likewise, recorded or written transcripts of any and all court proceedings are available for purchase to anyone with your name, case number and a checkbook. (With the exception of some court identified confidential cases – and even those are subject to inspection if the Court grants a requesting party permission). Do you really want this information out there……forever?  I have won many a subsequent case by digging for dirt in a prior case. I’m just saying! Resolution is often times like Vegas. Well, you know the saying: “What happens in Vegas……Stays in Vegas”.

8. Resolution shields any children that may be caught in the cross-fire and preserves personal relationships. Need I say more?

While there are certainly times wherein resolution will not be possible, these are just a few good reasons to consider it as a possibility and encourage the other side to do the same. With regard to your particular case, I am certain there are others things to consider as well. So, as you enter through the holiday season and look towards to the New Year, consider the benefits of resolving to resolve.

Thanks for reading. Please note that I am licensed to practice law in Maryland and the District of Columbia. This topic was based largely off my general mediation experiences in and around the State of Maryland. Of course, nothing herein is intended as specific legal advice, but food for thought. Please feel free to learn more about my practice at http://www.kelseylaw.net.

In addition, please be sure and “like” this and any other article to promote the sharing of these important topics. Of course, I welcome you as a regular follower to my blog and you may choose to do so by clicking “follow” on this page. You may also follow my practice by liking “The Kelsey Law Firm” Facebook page and following me on twitter at “@Kelsey Law Firm”, feeling free to retweet at any time. For the lighter side of the firm’s activities, follow me on instagram at “TheKelseyLawFirm”. Hope to see you in one or all of those places.

Please share when you’ve been happy to have resolved an issue or a time past, when you wish you had. I welcome your comments and/or questions. In the meantime, Happy Holidays and Happy New Year!



Categories: Alternative Dispute Resolution, Arbitration, Compromise, Mediation, Negotiation, Small Claims Procedure

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