Early Mediation was Better than my Day in Court
By Sherman Knight.
Most people imagine their day in court will be like the Hollywood movie that you saw last month. Justice is served in just 90 minutes and the good guys always win.
Litigation
Back when you were first sued, your attorney told you that there was a possibility that even if you win, there won’t be enough to fix the damages and pay your attorney. And, it was always possible the other side just doesn’t have the money anyway. If you lose, all that time and effort is for nothing and you still have to pay your attorney and fix the damages out of your own pocket. You have seen how glorious trial is in the movies and you think your trial is going to be the same. The need for your day in court clouds your judgment and telling your story to a judge becomes more important than money.
Here is what your day in court really looks like. Unlike the movies, you have spent the last two years and countless hours preparing for your day in court. You spent two years in depositions, answering interrogatories, paying expert witness fees, tracking down witnesses that have moved out of state and trying to find that missing document that is going to make all the difference in the world. Your attorney turned every stone hoping to find that one piece of evidence to win the case, but it was never found.
It didn’t take long before you started ignoring the mail because you dreaded the next bill from your attorney.
After two years, you no longer sleep well because of the uncertainty of trial and dwindling funds to pay for it. Your significant other quit talking to you months ago. You have been hashing it over and over in your mind and you are convinced you missed something or the other side is hiding something. You have not had a good night’s sleep in months. The effort just to get to a point where you can tell your story has been overwhelming, you feel miserable.
You arrive at the courtroom and are disappointed. It is just a room with a judge behind a raised platform. It is an old, cold rather sterile place. You hear people speak, but the language of the law is foreign to most, like the language from a distant land. You feel alone.
Trial begins, and it is your turn to testify. The person in the robe has absolute authority in the room and you worry about screwing up. The rules of evidence restrict the way your attorney asks questions which means your answers will be similarly restricted. The judge excludes what you thought was critical evidence based upon those same rules. Throughout your testimony, the judge never asks any questions or makes any comment. A couple of times the judge seemed confused. You really don’t know if the judge “gets it.”. After you leave the stand, you remember something you wanted to say. Too late.
During cross-examination, the opposing attorney tries to make you look silly and that your story is made of half-truths and thin air. You are personally attacked. You cannot believe how the opposing attorney is twisting what happened.
When the other side starts testifying you can’t believe what you are hearing. You are dumb struck with how easily they are telling a lie. The judge allows their evidence after excluding yours. How can that be? You become convinced the judge does not “get it.”
You suddenly realize your story is not being told the way you wanted it to be told. You don’t know if the judge was listening or realizes the importance of a special piece of evidence. Is it possible the judge is buying the other sides lies?
Unlike Hollywood, there is never a smoking gun to end it quickly.
After days in the courtroom and all the witnesses are done, the judge says come back on a month for his ruling. Are you kidding me! You are going to be miserable for another month.
You are more miserable now, than you were before trial. The list of doubt-filled questions in your mind is overwhelming. Why did the judge exclude our evidence? If I had said something in particular maybe the judge would have seen the other sides lies. And on and on ……………………………….
A month later, the judge hands down a ruling. The order gives you much of what you were after, but not all. The judge believed some of the lies and some issues went the other way. Because there is no clear winner, the judge denies your request for the other side to pay your legal fees.
You don’t recover enough to fix all the problems and you still have to pay your attorney. Just like your attorney had warned two years earlier. You realize you were blinded by your need to teach the liar a lesson. To find justice.
A week later the other side files a notice of appeal and you realize this is going to continue this emotional roller coaster for at least another year.
After two years and a lot of money, you can’t believe what just happened.
You just had your day in court.
The description above is not because you could not afford a rock star attorney. The legal system is about winning, at any cost. As well as the system works, it fails to take into account the misery the system forces upon a litigant. .
Early Mediation
The next time you are sued, you tell your attorney to just get it done. He recommends early mediation. The parties agree to limited discovery in a short period of time (60 to 90 days) and a mediation date 30 days later. Your attorney tells you it will be less expensive, but stones will be left unturned. You have to be willing to accept that evidence may be missed in this process. From prior experience, you spent a lot of money for very little useful information. You balance the risks and benefits and find the benefit of less discovery along with early mediation worth the risk of missing a piece of evidence.
Within several months, mediation typically occurs in a conference room that is usually smaller and much warmer than a courtroom. Everyone sits at the same level. The mediator speaks in a language you can understand and does not wear a robe. The opposing side may be in a different conference room altogether so you don’t have to listen to their lies.
As you attend the mediation, you recall how it’s only been several months since the lawsuit was filed. So far, legal costs are manageable. You know you can walk away from the mediation at any time and feel like you are in control of your own destiny. Mediation has been far less stressful than trial.
You are not cross-examined by the opposing attorney and you don’t have to listen to their lies.
You get to tell your story, the way you want it told. You get to converse with the mediator and your attorney, discuss the pro’s and con’s of the parties positions or settlement offers. You know for sure when the mediator “gets it.” And when you know the mediator gets it, the tension is suddenly released. Someone heard your story the way you wanted it told. You wonder why you didn’t do this the first time you were sued.
You just had your day in court, mediation style.
Because you have not spent all your money on the cost of litigation, you have options. You are in control of your destiny, not some judge in a robe that you have never met before.
The offer is not what you wanted, but it is acceptable. It is most likely better than if you had won at trial but without recovering legal fees. It is done, no more depositions, no more bills in the mail, no trial and no chance for appeal. You can get back to your life.
You feel sorry for the next litigant that needs to tell their story to a judge.
Early Mediation is better than your day in court.
