How Compromises Can Help You Avoid Trial
Monday, May 28, 2012
No matter where you find yourself on this spectrum, there are people and methodologies for facilitating compromise. At its core, compromise is instinctual. People generally know that you give a little and you get a little. It’s like being at the elementary school lunch table and trading potato chips for nachos. Except, as we have gotten older, the stakes have gotten higher and there are far more rules.
Compromise during litigation can only occur in the context of the relevant law and facts. Part of any pretrial solution requires both parties to be realistic about how they can expect a case to play out at trial, how long it will take to get there, as well as what they can expect to get out of a win. Of course, if your case is strong, and your opponent will not make you a reasonable offer because of some personal reason, you have no choice but to go to trial.
If, however, the two people on opposite sides of a table can at least agree to try compromising there are ways to do it. Both conciliation and mediation are terms used to describe non-binding out of court meetings between parties. The idea behind both conciliation and mediation, whether it is in a divorce or personal injury matter, is to provide a chance for both parties to state their theories of recovery or defenses and otherwise air their feelings on a case.
Central to these processes is a neutral third party who will sit and listen to both sides. What the mediator can do is take both sides, weigh their issues and suggest a way to provide both parties with what they need. Often times, neither side gets exactly what they want, but can still find satisfaction in the result.
Some readers may have heard the term arbitration before. The major difference between arbitration and mediation is that arbitration is binding. It is designed to be a final ruling on any dispute between parties. Often times, arbitration clauses are included as part of contracts you sign on a daily basis. If you have ever purchased a home, take a look at the purchase and sale agreement. You might find a paragraph explaining that any dispute over the enforcement of the P&S is subject to arbitration.
Because of its binding nature, arbitration is a highly structured event with rules designed to encourage neutrality and consistency. One of the most beneficial parts of arbitration is its efficiency. Once a dispute arises, the parties can move swiftly through the process to reach an arbitration date. In addition, many arbitrators are either experienced lawyers or former judges and have the ability to apply the law accurately and fairly. All these factors come together to provide a just solution on an expedited time line.
Here in Central Massachusetts, we are fortunate to have many options for conciliation, mediation and arbitration. Many private entities specialize in providing these services and the costs are usually shared between the disputing parties. There are also many programs offered free of charge. Specifically, the Worcester County Bar Association has programs in the District and Probate courts where practicing attorneys volunteer as neutrals to try and resolve cases pretrial. In addition, the Trial Court of Massachusetts provides the services of a professional mediator to parties in Superior Court free of charge.
While there are many ways to do it, the most important part of solving a problem is having two people willing to put personal differences aside. While that can be a tall order at times, it can be well worth it.
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