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Below please find excerpts from “Your Winning Edge-The Lawsuit Game and It’s Alternatives”
©2006 by Ronald K Stitch. I hope you find this information useful.
CHAPTER TWO - KEEPING CONTROL, NEGOTIATION & MEDIATION
Part 2
Generally, lawyers are pre-occupied
with the law. When they negotiate with other lawyers, the
discussion revolves around each lawyer's opinion of how a court
would decide a case. Indeed, in giving competent legal
advice, a lawyer must tell his client how he views the case
based upon existing statutes or precedent established by case
law relevant to the given factual situation. Often, the
law factor takes over and becomes the sole factor on which a
dispute is eventually settled. This one factor analysis
ignores the true needs and concerns of the parties in a dispute.
Especially in some areas of
law, lawyers are familiar and friendly with other lawyers in
their community. They see each other often in court and
over years of practice, become familiar with other lawyers and
their styles of negotiation, demeanor and practice before the
court. This may lead a client to believe that their lawyer
is too chummy with the other side and is selling out their
position. Unless the client is there listening to every
word their lawyer is stating to the other side, it is easy for
him to become paranoid in this regard. If you feel this
way, you should request that you be present during all
negotiations on your behalf.
The bottom line in having a lawyer
represent you is that you either trust your lawyer to be your
advocate or you don't. Lawyers are bound by their code of
ethics to be zealous advocates of their client's interests.
This doesn't necessarily mean that they will be advocates of
their client's positions. The difference between one's
position and the interests behind those positions leaves room
for negotiation and allows two or more parties to a dispute,
with or without their attorneys, to reach resolution without
having a judge or jury decide the issue. If you will only
resolve your entire dispute or a part of it a certain way, be
sure and communicate that to your attorney. That way, your
attorney will know that you are only willing to resolve your
dispute a certain way, even though there may be other solutions.
If you feel uncomfortable with
a certain lawyer being your advocate, then you need to find
someone you are comfortable with or represent yourself. It
is very hard for some people not to be involved in every step of
the process. This is a decision that may require some soul
searching on your behalf when you hire an attorney to represent
you in the first place. You need to ask yourself how much
control you are willing to delegate to a person who has the
power to make decisions on your behalf. If you feel
uncomfortable with letting go, then you will need to be kept
informed by your attorney of the negotiation process in detail,
whether that process takes place in his office or in the
hallways of the courtroom. If you want to control the
negotiations, but want to be represented by a lawyer, the more
detailed instructions you give your lawyer, the better off you
will be.
MEDIATION
In mediation, a neutral
third-party will assist you in the negotiations. Most
forms of mediation are less intrusive than arbitration and going
to court where a third-party makes decisions about the dispute.
National organizations of mediators
promote the following aspects of mediation:
· It's confidential.
· Relatively inexpensive.
· It empowers the parties to make
their own decisions and be creative in solutions to the dispute.
· Generally agreements are longer
lasting because the parties solve their own problems.
· It preserves whatever relationship
exists between the parties.
Some assert that mediation is
most effective where there are emotional underpinnings to the
dispute, such as dissolution of marriage action, a sexual
harassment complaint, discrimination law suit or a neighbor
dispute. Actually, there is no reason why mediation cannot
be used to resolve all disputes. If it doesn’t work, the
parties can always use a method which is more intrusive.
If mediation works, not only will the dispute be resolved, but
time and money will be saved as well.
Mediation, however, is not
without problems. If litigation is inevitable, the
mediation process may be used by a party not committed to the
process to gain valuable information that may be used against
the other party in litigation. If the information can be
verified from outside the mediation process, that information
can be used as evidence in a lawsuit. The
information will then give the advantage to the party obtaining
it in the mediation. Also, mediation may be used to stall
the process between the parties to resolve their dispute.
In mediation, each party to
the dispute negotiates in the presence of the mediator.
There may be advisors, including attorneys, for each of the
parties present. The mediator has a variety of tools at his
disposal, including:
· Asking questions to help focus the
parties on the issues.
· Testing the reality of a party’s
position by comparing that position to an outside source or
standard, e.g., your opinion of the value of the family
residence compared with the opinion of the value of the
residence by a professional appraiser,
· Re-framing statements to get
parties to really listen to each other. By re-stating the
parties’ statements in a different way, the mediator can
emphasize another point so that the other party will hear what
the party is saying from a different perspective. Also,
the mediator may use re-framing to focus the parties on a
different aspect of the problem or possible solution.
· Asking questions to get the parties
to articulate the interests behind their positions to find out
what really motivates them or what they really need. In
this way, options may be explored that the parties may not have
thought about. The negotiating pie may be expanded so that
each party’s needs are met creating a win-win situation.
· Summarizing in writing what each
party said in mediation and asking each party to verify the
accuracy of the writing at the next session.
· Reducing the mediated agreement to
writing.
· Privately talking to each party
separately to help explore possibilities of settlement, known as
“caucusing”.
Law should be looked at as
only one standard that may used in helping the parties resolve
their dispute. Other standards and the parties’ personal
interests or needs should also be considered. You may be
preoccupied with the law and want your rights protected.
Yet, it may be more prudent for you and the party you are having
the dispute with to resolve the dispute based upon what is
needed rather than what the law provides.
Mediation, like negotiation,
is a conciliatory way to resolve disputes. It can consider
all the parties needs and tangible or intangible factors
including those used to create a stable, emotional and moral
relationship between the parties. This is not to say that
mediated agreements should not be legally enforceable, only that
the parties can agree to just about anything they want to and
can decide to make the agreement legally enforceable or not.
Legal action is only one way
to resolve a dispute over a mediated agreement. The
parties can always go back to mediation. Mediation may be
less expensive than a different method of dispute resolution if
the parties are careful to monitor the time and costs of
mediation and retain their commitment to the process.
Mediation allows parties to decide a dispute, as fast or slow as
they want. It also allows them to create their own
destiny.
Whether or not the mediation
is successful will depend on the skill and knowledge of the
mediator. Accordingly, choosing the right mediator, as
discussed in Chapter 4, is an important task. There is
also a need for attorney participants to understand the
mediation process. That way, they may help, rather than
hinder, the process.
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