Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.
Litigation is not the answer. Litigating is very expensive and there are never really any clear winners. Even those who “prevail” at trial usually spend far more in fees, expenses, lost opportunities, and goodwill than what they recover. Sometimes, litigation is unavoidable, but all potential litigants would do well to consider mediation, and to consider it early.
What Is Mediation?
Mediation is an informal and confidential process that facilitates communication between litigants or potential litigants in order to better understand each other and resolve their dispute. The parties can be represented by an attorney but legal representation is not necessary. The mediation is conducted by a mediator, sometimes referred to as a neutral.
In addition to being confidential, the mediation process (as opposed to a trial or arbitration) is non-binding. In fact, the mediator does not render a decision and has no power to force the parties to settle their claims. Rather than determining who is right and who is wrong, the mediator’s job is to understand the respective parties’ positions and see where common ground and the potential for compromise exists. This helps all concerned to focus on solutions and the future rather than problems and the past.
Why Mediation Works.
The vast majority of mediations result in a settlement. Even when parties are entrenched in their positions mediation works. The primary reason for this is effective communication. (Not surprisingly, the primary reason for litigation is poor communication.) Mediation provides a unique environment where parties can work with a third-party to communicate effectively with the other side. There is no other process that affords parties the opportunity to sit down together with a neutral mediator, and without other distractions, and focus on resolving their problems.
This process of focused communication invariably results in better educating the other side about your position, and you being better educated about theirs. This heightened understanding usually reveals the points on which the parties can agree and what compromises are possible to resolve the points on which they do not agree.
Another key reason mediation works is that it takes emotion out of the process. Parties, and even their attorneys, are often emotionally invested to a significant degree in their claims. A mediator is not similarly burdened. A skilled mediator is able to filter the emotion and legal posturing that otherwise burdens communications, and instead focus on solutions.
Finally, mediation helps parties hear the mediator’s honest opinion about their chances in court. A good mediator will have a great amount of litigation experience and will help the parties realistically evaluate the strengths and weaknesses of their case as well as the shortcomings of litigation in general.
By communicating effectively with the other party, removing emotion and posturing from the negotiating process, identifying areas of
common ground and possible compromise, and obtaining a realistic and neutral assessment of one’s case, mediation usually results in even the most difficult disputes being resolved once and for all.
Who I Am.
Trained at the Straus Institute for Dispute Resolution at Pepperdine School of Law, Greg Hoole is a skilled mediator and arbitrator. He has a great amount of experience in civil litigation and has been recognized by his peers in the highest category possible by all recognized reviewing bodies: Martindale-Hubble (AV, preeminent), Utah Legal Elite, Mountain States Super Lawyers, and AVVO (5-star, 10/10 rating).
Greg understands the emotion involved in litigation and is adept at solving problems and bringing parties together. His work frequently takes him to locations throughout the state, which allows him to schedule mediations without charging parties for his travel expenses.
Greg is a member of the Utah Council on Conflict Resolution and a member of the Utah State Bar’s Alternative Dispute Resolution Section. Greg writes and lectures frequently on the value and benefits of alternative dispute resolution.
$250/hour. No charge for travel.
To schedule a mediation with Greg, please contact Miriam Strassberg at Utah ADR Services by clicking here.
Traditional litigation is a mistake that must be corrected . . . . For somedisputes trials will be the only
means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle
and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people.
—Chief Justice Warren E. Burger, (Ret.) U.S. Supreme Court
To learn more about mediation and its benefits, You may be interested in reading:
- Building on the Past and Looking to the Future: How Mediation Has Evolved to Become a Standard, Instead of Alternative, Form of Dispute Resolution, Utah Bar Journal, July/August 2018
To learn more about the services this practice section offers, please contact:
Gregory N. Hoole