Knowledge Base

Heading for Litigation,
Think Mediation 


November 1, 2016
Written by Lynne C. Halem

Are you headed for court? Have all attempts at reaching settlement failed? Is the only option open to you a judicial ruling on the merits of your case? We, at the Centre for Mediation and Dispute Resolution, believe that the answer to the question is a resounding “no.” Mediation, perhaps never considered by the involved parties or even by their attorneys, presents an opportunity for settlement in which the opposing parties, not the judge, determine the outcome. Mediation offers a chance to listen and be listened to. Time and money may be saved and relationships on the brink of destruction may be salvaged.

Consider the following examples of cases in which litigants resolved their dispute through mediation.

Family Dispute: Siblings Contesting a Will

Jake and Bart James were brothers engaged in a bitter dispute over their recently deceased father’s will.  In many respects their conflict was a surprising development.  Separated by two years in age and schooling, they had been close as children.  They shared a bedroom and many of the same friends. Even when their father became ill, the brothers worked together to plan for his care.  Indeed, even though dad refused to accept his sons’ advice to sell the family home and move into a nursing facility, the brothers remained united, undertaking arrangements for dad’s daily care. But then dad got worse and there were not enough hours in the day for Jake and Bart to oversee dad’s needs.  In desperation, Jake agreed to move into the house, taking a leave of absence from his job as a computer programmer. The family- friendly policies at his place of employment allowed for his unpaid leave.  Dad was thrilled, offering to compensate Jake for his lost wages.  Bart, too, was thrilled, never questioning the “goodness” of Jake’s decision on his brother’s future, never delving into its impact on Jake’s personal life.  A major problem had been solved, and for that Bart was relieved.

And life went on, until dad died, two years after Jake had moved into the family home.  It was not until after the funeral that Bart discovered that dad had changed his will and left the house to Bart.  And then the battle began.  Bart accused Jake of manipulating a sick man, of coercing his father into changing his will.  Jake was shocked at Bart’s reaction.  After all he had spent two years living with dad and arranging for his care, surely that counted for special compensation.   Bart could not believe his brother’s argument; “Dad supported you.  He was your job and you got paid.  You lived for free and that was fine with me, but to keep the house, that is simply too much to accept.  How could you stoop so low? He proclaimed with disgust.

So each brother hired an attorney.  And the attorneys talked and talked, but without resolving the brothers’ dispute.  Now, after a year of bitterness, of money expended, and of time lost, the brothers were headed to court. Or so they thought until Jake’s attorney suggested mediation and Bart’s attorney and Bart agreed.  To the brothers’ surprise, mediation provided the environment in which each brother could express his feelings and his thoughts, openly and confidentially. Bart agreed that he had saved money by not paying rent for two years or paying for any living expenses.  As a result of his two years of full salary without living expenses, he had saved quite a bit of money.  Bart agreed that Jake had made major sacrifices.  In a sense he had been on call by his father 24/7, he had put his career on hold and, to a large degree, his personal life.  

Although personal sacrifices are hard, if not impossible, to quantify, the brothers agreed to look at their disagreement as if it were a mathematical problem.   They added the real dollars spent and saved and put value, elusive as it was, on the more subtle sacrifices.  As a result Jake kept the house and Bart received a monetary compensation from moneys saved by Jake.  Both brothers felt the “deal” was fair.  Both brothers promised to work at repairing the damage that a year of fighting had done to their relationship. For the James brothers mediation restored family ties and saved further erosion of time and money.

Custody Dispute: Divorced Parents Seek Primary Custody

Our second example takes a look at Victoria and Sam Hoppel, parents of twin 8-year-old girls.  The Hoppels were engaged in a custody battle, a battle that had continued after the issuance of their divorce, a battle in which neither parent would agree to discuss alternative solutions, let alone a settlement.  Much time and money were expended on depositions, on interviews with the court-appointed guardian at litem, on meetings with school personnel, coaches, and the children’s therapist, not to mention individual and joint 4-way meetings with their attorneys.  Many well-intentioned friends, even family members, urged settlement.  No good could possibly come from a fight over two children who loved both parents, a fight which left each child afraid to say anything positive about one parent to the other, who were having trouble sleeping and concentrating in school.  What indeed were these parents hoping to achieve?  Did they not recognize the harm that their battle was doing to their daughters?  The answer is no.  Each one believed, to his and her very core, that he or she should be the primary custodian, that he or she alone could provide the nurturing home that the children needed.

After all the legal interactions and actions, the Hoppels were headed to court.  Perhaps it was the venomous exchanges between the parents that prevented both attorneys from recommending mediation instead of the pending litigation. Perhaps each attorney truly believed that his/her client really should be appointed primary physical custodian—that such an appointment would really be in the children’s best interests. 

Yet, when the guardian at litem’s report was circulated among the parents and the lawyers, the Hoppels were taken back. Neither of them was seen as the parent of choice; vindictive behavior on the part of each parent was seen as selfish and indeed reprehensible.  The guardian blamed mother and father for the children’s fears and confusion.  “If these parents do not begin to see the damage that they are doing and work together, in some manner, these adorable two children will experience irreparable harm.”   This prognosis of “irreparable harm” stunned both Victoria and Sam.  Somehow, in some way, each parent believed that if he or she emerged victorious, all would be okay; the girls would be happy and life would be good or at least better than if custodianship was not awarded to him or her.  Now, at the eleventh hour, both attorneys and both parents began to have second thoughts.  No one could count on winning in court; indeed what if the judge determined that neither parent was “fit.”  With the uncertainty of the outcome and the troublesome prognosis of the guardian at litem, the lawyers recommended mediation.

Although the hostility of the parents made mediation a shaky alternative of choice, there really was not any other alternative that appeared more attractive.  And so the Hoppels entered mediation.  Maybe the stimulus for settlement came solely from each parent’s fear of losing the children.  Maybe without a negative report from the guardian at litem, the litigation would have been waged on and on.  Whatever the reason, the Hoppels did mediate and mediate successfully.  They devised a parenting plan that provided ground rules, oversight, and structure to the time that the children would spend with each parent.  Counseling for parents and children was stipulated with agreed upon regulations for ensuring parental participation. Although a parenting coordinator was not agreed to, Victoria and Sam did agree to grant decision-making authority to the children’s therapist in the event that they were unable to reach agreement.  And, too, periodic reviews of the children’s schedule and the parents’ responsibilities were part of the mediation agreement.  Whether or not the Hoppels will be able to parent collaboratively in their children’s best interests remains to be seen.  Still for the time being, a trial has been averted and the parents have pledged to put hostilities aside and uphold their agreement.

Admittedly mediation is often not considered in cases where hostilities have mounted and a trial seems foreordained. Still litigation should always be the option of last resort.  Mediation presents an opportunity to take control of the decision-making, giving all participants a voice in the determination of outcomes. Interestingly, the savings of time and money, the most touted benefits of mediation, may not afterall be the most important of the benefits reaped from mediation.  When mediation is successful in hotly litigated cases or those headed for court, its greatest benefit may lie in the repairing of broken relationships. 

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