Client’s Misunderstanding of Litigation – Part 2

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Maybe Mediation is the Best Solution

Mediation may be the Answer

If you look up Trial Lawyer Magazine for July, 1988 (I believe that was the issue), you will find an article, “Client’s Perceptions of Litigation” which has excellent content and demonstrates why mediation is often a better means of resolving conflict for a client than litigation.

One example posed in that article concerned a woman stopped by a police officer for speeding. She disputed the charge and told the officer that she definitely was not speeding. But he cited her dispite her protestations. So she fought the ticket and asked for a hearing.  On the day set for the hearing the officer failed to show. As a result, the judge dismissed the charges and excused her from the courtroom. But, she objected and asked to be allowed to give testimony. The judge said, “Mam, perhaps you don’t understand. You won! And the charges are dismissed” She replied;”But, your honor, I want to have my day in court and tell you why I was wronged”.

Who’s Day in Court is it?

Clients want to have their day in court and tell their story – but that isn’t what happens. The truth is, that in the courtroom, the client is often very frustrated with the process. When you conduct direct examination of your client, the client will have to answer the questions that you think are important. On cross, they have to follow the agenda of opposing counsel who challenges their honesty and cuts them off continuously when they have more to say. But they can’t say it. Even as you sit at counsel table during the testimony of witnesses, you will find your client will want to communicate with you concerning the veracity of that testimony or significance of that record. All of this occurs while you are trying to concentrate on that witnesses’ testimony. You silence your client as you try to listen intensively.   The result, a frustrated client regardless of the outcome. (Hint – give them a notepad and pen and tell them to take good notes. Tell them that you will look at those notes before excusing the witness to do follow up as necessary. This keeps them occupied and allows you to listen without interruptions.)

It is the Emotional Capital they don’t want to Spend

Lawyers often experience a client’s change of heart on the courthouse steps just prior to trial. To prep your client, you will put them through anticipated questions they may face on cross examination during trial. You do this to help them understand what they will experience as opposing counsel will critically prod and prob every word of their testimony. During this process, they begin to understand that the emotional capital that they have to expend is often perceived as too much to bear and they want to back out and settle the case.

Mediation may be the Solution

Mediation, on the other hand, starts by giving both participants an opportunity, without interruption, to do what they have been wanting to do all along. They get to tell their story in the presence of a referee of sorts, to the other side. The other person who has not listened to them before. This allows them to drop a huge amount of pent up emotional expression to the one who has wronged them in a controlled environment. Most of the time, that has been their goal all along.

The next step in the process is one in which the participants negotiate a solution which is one that they create with the help of the mediator. It is a solution that usually means that neither one gets everything they want. But, they can live with that resolution because it is one that they own. This is ideal, particularly when there is a continuing relationship between the parties that, of necessity, must continue. For instance, neighbors disputing boundary lines will continue to live next to one another as neighbors.

A solution that they create is one that they will enforce. A resolution that is determined after litigation through a court order will be one that is followed according to the letter of the law, but may not be followed in the spirit of the law. The neighbor who lost the lot line dispute may play his radio at increased volume at all hours of the night and still respect the new court-ordered boundary line. So mediation offers an opportunity for the neighbors to make amends through the mediation and move on from there. So too, in the case of divorces, mediation can allow the parties to communicate effectively and resolve their conflicts in a manner that will allow them to air their grievances and manage their affairs without the constant intervention of the courts.

Mediation may not be appropriate under certain circumstances. When physical or sexual abuse has transpired, or if it is necessary to set a precedent, mediation may not be in order. But, far too many conflicts are resolved in the courtroom which may have been played out with better results for the participants in mediation.  And, in the end, the perception by the client of the attorney’s value to them may be enhanced. Always give it consideration before going to trial and you may find greater success attracting and retaining new clients.

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