Recently, a friend extended great hospitality in Moscow that included examples of Russian culture. In thanking him, I proposed to share classic examples of American culture. He replied that a memorable example of American culture would be American litigation.
His comment was very amusing, wise and true. Litigation is indeed a reality of American culture but it is costly in every sense. No country has as much litigation – only the United Kingdom and a few other countries can even be compared – and , as an example of the differences, America has 17 times more lawyers per capita than Japan.
Some proceedings – especially disputes with the government such as criminal or immigration matters – are hard to avoid. But lawsuits over money can often be minimized through out of court settlements – usually, the sooner the better. One of the most important tools for this is mediation, which is a voluntary process- directed by a neutral peace-maker- to try to get the parties to agree to their own settlement. Unlike arbitration, which is like an out-of-court trial that is binding, mediation seeks an out-of- court settlement process which is entirely voluntary. Very importantly, everything said during a mediation is maintained in strictest confidentiality so each side’s comments cannot be repeated at a later time. If the parties do not agree, they can always go back to court to allow a judge or jury to decide what will happen.
Although mediations often take place after many months of litigation, parties should consider in appropriate cases trying to conduct a mediation early, before so much money and time is consumed. In some cases, we have held successful mediations before a lawsuit is even filed which, if successful, saves an enormous amount of costs. At times, there is not enough information available to determine what would be a fair settlement and so mediation at the beginning may not always be desirable.
But when a case can be settled through mediation, especially early during the process, the many costs of litigation can be avoided, costs which include not only losing money but losing so much of the time and positive energy of all the individuals concerned.
While we may always have a culture of litigation in America, hopefully resolving disputes less expensively and faster through processes like mediation will become one of the biggest parts of that culture.