“A man should never be ashamed to own he has been in the wrong, which is but saying, in other words, that he is wiser today than he was yesterday.”
| You Have Choices…To Consider in Resolving Your Dispute
| In today’s litigious environment, people are using an increasing number of vehicles to resolve conflicts and disputes. With the high cost of traditional court litigation even the courts have recognized that Alternative Dispute Resolutions should be considered and explored by the parties. Today most lawyers will encourage their clients to think about the options that are available. Anyone involved in a dispute should explore whether these options should be used instead of traditional court litigation.
Even if you have already initiated court litigation, here are some of the choices that you have that have been used successfully by many others. Even if you have already filed a lawsuit against a party and have started down the road of litigation, you can still consider the following “options” for resolving your dispute. Before you conclude that none of these are real “options” for you, take a few minutes and read the description and comments about each technique.
The courts are going to require that you go through mediation before going to trial, so you may as well consider the other options that you have. You may be surprised that the other side may agree to one of the following forms of resolution, or you may combine options or come up with your own method for resolution.
|1. Choosing to simply “Overlook” the matter:
At first blush, you may think this is not an option to consider. And it may not be, depending on what harm has happened to you. However, you should at least think through the harm that has occurred and the possible result from the path you are pursuing, and decide if you should simply choose to overlook part or all of what has happened. This choice has a scriptural basis. Proverbs 19:11 states, “The discretion of a man deferreth his anger; and it is his glory to pass over a transgression.”
The emotional and financial cost of going forward and getting vengeance on a party who has wronged you may be higher than simply choosing to overlook the offense. Particularly after you think through what you would really like to see happen and, given the power that a court may or may not have, you may choose to try to resolve your dispute in some other way, at least before completing the path of traditional court litigation (1).
To reconcile with the other party means to think honestly if you have any part in what happened and meet with the other side and confront them over their own conduct to see if they will acknowledge they have wronged you. Reconciliation is a concept that is thousands of years old. It may be accomplished directly by the parties or you may need a counselor or mediator to explore this option and guide you through this process.
In short, reconciliation involves confronting the other party with their actions and ask that they acknowledge that what they have done is wrong and has harmed you. You or a third party would ask the other side to apologize and, if appropriate, correct the situation through restitution or other means that can involve finances or anything that you think is appropriate to correct what has happened.(2)
You should realize that no judge, jury, arbitrator, court or human has the power to change events that have already happened. But we do have the power to change what happens in the future. Some of those steps can bring healing and repair some of the damage caused by past events.
3. Consider using a Counselor.
Someone viewed by both parties as impartial, experienced and wise.
With some disputes there may be a pastor, neighbor, banker, public official, business person, lawyer or mutual friend that is respected by both sides. Since the person is known and respected, asking this person to get involved may have an appeal to the other side.
Intervention is a technique used often with family disputes and addictions, but it may be appropriate for your dispute. It involves gathering a small group of persons who are respected by the offending party and setting up a meeting with the parties to discuss openly and candidly what has happened. The tone would be one of warmhearted concern toward the offending party. Before the intervention, those involved (other than the party that the intervention is directed to) should discuss each participant’s role and input. The participants should discuss who and how control of the meeting will be maintained. Care should be taken to avoid having the meeting turn into an argument between the parties.
There are counselors, pastors, priests and professionals who have experience with this technique and it is recommended that you consult an objective outside professional to assist in this process. This is normally a “one shot” method. There can be a strong impact with the use of this technique with the offending party, but it needs to be done right the first time.
No matter what has happened to you, you must have in mind some result, change or award that you would like to see happen. One option is to try to negotiate a resolution to the matter. You can do this yourself or it is often easier to negotiate through another party. If you have hired a lawyer, your lawyer can attempt to negotiate a satisfactory resolution with the other side. You can also use a trusted counselor or a person(s) who both parties respect to see if some resolution can be achieved. And if you label your attempts as “Confidential Settlement Discussions” these conversations are normally protected from later use and disclosure in court trials and arbitrations.
Mediation is a process where a neutral person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two parties. Mediation is an informal, non-adversarial process with the objective of helping the parties reach a mutually acceptable and voluntary resolution. In mediation, decision-making authority rests with the parties.
Mediation is a voluntary process even though it may be court-ordered. By voluntary, this means that no one is going to make a decision for you or force you to accept a resolution.
The entire mediation process is confidential. All offers, promises and statements, whether oral or written, made during the mediation, by the parties or their attorneys, will be confidential. Offers, promises and statements will not be disclosed to any outside persons and the mediator will not disclose to the other side any statements or information that you ask to be kept confidential.
The mediator is not a judge and does not rule upon any issues involved in the case. Absent a settlement or consent by the parties, the mediator will only report to the presiding judge whether the case was settled, was adjourned or was continued for further mediation.
Whether yours is an employment dispute, a mortgage foreclosure or a commercial dispute, Mr. Harper has written a letter to each party (found on this website) that explains the mediation process in more detail.
Mediation, as with several of your choices, also has a basis in scripture. Jesus instructs Christians to, “Agree with thine adversary quickly, whiles thou art in the way with him; lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison.” Matthew 5:25
6. Pre-Suit Mediation:
Most lawyers will not file suit without first contacting the offending party, confronting them with their actions and, giving that party a chance to correct the injustice. Indeed, most lawyers believe that they have an ethical duty to try contacting the opposing side before filing suit.
With today’s high cost of court litigation, and the limits on what the courts can accomplish, most lawyers and counselors will suggest pre-suit mediation to see if the matter can be resolved sooner, rather than later. Lawyers have to charge for their time. A quick resolution can save thousands of dollars in attorneys’ fees and court costs. Our federal courts in Florida have realized this and now require the early mediation of certain types of cases including wage/hour disputes. If you are contemplating filing suit, consider suggesting a pre-suit mediation to the other side.
Arbitration is really a private trial. Arbitrators have been used for decades to decide, privately, disputes between parties. There are hundreds of individuals around the country who serve as impartial neutrals and arbitrators to resolve disputes. There are many ways in which arbitrators can be selected. You can let one arbitrator decide the matter or a panel of three or even five. Each side can select an arbitrator and let those two arbitrators select a neutral third person. Mr. Harper is a qualified court appointed arbitrator in a number of Florida judicial circuits. Information on Mr. Harper’s arbitrator qualifications can be found at www.WorkplaceArbitrator.com.
Arbitration has the advantage that it can normally be conducted in private and the resolution occurs more quickly and at a lower expense to the parties. Arbitrators normally have the same full range of remedies available to them to resolve the dispute.
In civil arbitration, often the parties agree to an abbreviated discovery process so the parties have some discovery as to the claims and testimony of witnesses. The parties locate a venue, such as a hotel conference room or other facility and an actual evidentiary hearing is held.
The American Arbitration Association has developed formal rules of procedure for resolving commercial and employment disputes. These rules can be followed to resolve your dispute through the arbitration process. There are other organizations that have also developed written rules of procedure.
Arbitration also has a scriptural basis. The Apostle Paul instructs Christians to use arbitration as a way of solving disputes in 1 Corinthians 6: 1-6. Christian conciliation has written Rules of Procedure that have been developed by Peacemaker Ministries (www.Peacemaker.net).
Employers and labor unions have used arbitration to resolve disputes for many decades. There is also an established body of law for the appeal of an arbitration decision, if the award fails to meet certain standards. Thus there is a level of protection through the courts for an arbitrator that does not rule within established law or based on established contract language.
8. Special Master:
Special Masters are normally officers of the court who serve at the pleasure of an appointing court. They are trained persons who the courts use to make decisions and recommendations, usually in detailed types of cases. They are often used in complex civil actions where their expertise would assist the court in developing the record and deciding on various issues.
Because of the case load of our courts, many judges are referring matters to a Special Master for decisions. In the court system, Special Masters perform a wide variety of tasks. Often their decisions are issued in the form of recommendations that are submitted to judges for approval. They are also used to help administer complex cases and settlements. In employment cases, Special Masters can also be used post-trial to determine the amount of back pay or other issues.
Rule 53 of the Federal Rules of Civil Procedure provides the authority for the appointment of Special Masters by U.S. District Courts. Similar authority is granted in state trial courts. Special Masters are normally compensated for their work and the court sets the rate of their compensation.
9. Biblical Conflict Resolution:
For those who believe in a higher power, the Bible provides instruction in how God prefers for individuals to handle conflict. Conflict is a normal part of everyday life; Yet, the way we respond and deal with it can help us grow as a person and also please God. Lawyers, churches and Christians in particular have studied the Bible and have developed clear concepts for a conciliatory process to resolve conflicts.(3)
The Bible encourages persons to communicate and resolve disputes without using the court system. For those who are interested in considering a biblical resolution of conflict, Peacemaker Ministries (www.Peacemaker.net) has developed a set of Rules of Procedure for use in pursuing a faith-based solution to conflict. As with the American Arbitration Association’s Rules of Procedure for Employment Disputes, these faith-based rules have been developed and used over many years. These rules have been used to successfully resolve a wide variety of disputes from small conflicts between members of a church to multi-million dollar lawsuits, including employment law claims. These rules are located on the link below:
This type of resolution is referred to as a “transformative” resolution since it asks the parties to look within themselves to examine the “roots” of their conflict. Trained Christian conciliators are available to assist parties in resolving disputes by the principles contained in the Bible.
10. Collaborative Resolution:
Often with a collaborative resolution process, the parties agree up front that they are not going to use traditional court litigation. The parties agree that they will work together jointly to arrive at a resolution that satisfies some of the interests of both parties.
The collaborative process has been used frequently in marital and family law. When the parties realize that action to needs to be taken, they can agree in advance to work things out using a process described as “collaborative.” There are a number of lawyers locally and through out Florida that have had training in the collaborative mediation process that can help a party in achieving this result.
Collaborative Mediation is style of mediation where the parties are encouraged to work toward resolution in a “transparent” and “peaceful, non-adversarial” manner. The goal is to support the parties to uncover the issues and create fair agreements that will stand the test of time. In Collaborative Mediation the parties normally work together with a shared purpose; they honor each party’s right to self-determination as well as those who are not present in the mediation. They agree in advance that they will be open with each other and put all ideas, issues and concerns “out on the table” for discussion.
Before you reject any of the above choices, you should take a few moments and ask yourself, “Do I have any part to play in what happened to me? Should I have communicated better?” Recognizing honestly within yourself that you have some part in what happened, may cause you to consider using a different path to resolve your dispute. You should also consider the cost of the path you have chosen or are considering.
Traditional court litigation normally takes over a year to reach trial. You will have to continue to live with the facts of what happened during all of this time and even longer. Being ensnarled in the litigation will tie you emotionally to what happened. Lawyers, court costs and stenographers must be paid. Even if you prevail at trial, appeals are possible that will last another 1-3 years. All of these are costs that must be weighed.
Realize that when you hire a lawyer, you are hiring a professional to assist you in denying that you have any part in what has happened and to assist you in attacking the other party. Your attorney will be expected make you look faultless and paint your opponent as the one who is entirely responsible for the problem.
In addition, you should consider what the eventual outcome will be. Does that outcome really solve my “hurts” and make me whole for the wrong that has been done? Remember that lawsuits usually damage relationships and often fail to achieve complete justice. Although you may be the winner at trial, the courts normally do not require the other side to say that they are “sorry” or to acknowledge that they have done anything wrong. If you win, the jury’s award of money may satisfy you; But ask yourself, “What am I really seeking?” “What do I really want to happen?”
Even if you have already filed a lawsuit against the other party and have engaged in months of litigation including discovery, depositions and swapping of documents, you should consider whether any of the above vehicles for resolving your dispute can end up giving you what you want, with less time and expense.
| 1.The Peacemaker, A Biblical Guide to Resolving Personal Conflict, by Kenneth Sande, 2004, Baker Books (Third Edition).
2.The Peacemaker, A Biblical Guide to Resolving Personal Conflict, by Kenneth Sande, 2004, Baker Books (Third Edition).
3.The Peacemaker, A Biblical Guide to Resolving Personal Conflict, by Kenneth Sande, 2004, Baker Books (Third Edition).