Friday, June 5, 2009

Exit Strategies

Some of mediation's touted benefits include the potential for repairing a broken relationship, or the chance to re-open communications between estranged business partners or a divorcing couple, people who must continue to deal with each other. Mediation can also devise creative solutions that open up if the parties are able to resume or start a new relationship, for example, settling a dispute over poor service or defective products by supplying new products or services. In many lawsuits, however, the parties have no interest in doing any further business with each other. In the garden variety personal injury case between strangers, there is no reason for the parties to desire any future contact, and even in a case that arises out of a soured commercial or employment dispute, the parties may not wish or be able to carry on any future business. So the question is often asked, how do some of the potentially transformative concepts of mediation play out in those situations where the parties want to be completely free of each other?

In response to people who say they want nothing further to do with each other, it could be eye-opening to point out that they are already in a close relationship with the person they want to separate from--a relationship being perpetuated by the lawsuit itself. Lawsuits force people to continue to think about each other; to continue to have contact with each other; to continue to hurt each other; or at least to continue to re-live the events that caused the parties' prior relationship to end badly. Lawsuits often merely replay in another forum the same destructive actions the parties engaged in with each other that led to the dispute. In that respect, the parties to a dispute are a little like the characters in the Sartre play No Exit, forced to spend eternity in a vicious cycle of frustration and enmity. (photo credited to T. Charles Erickson from New York Times review of Hartford Stage production)

What mediation offers people who don't want anything further to do with each other, is the chance to have nothing further to do with each other. The litigation process does not always offer the same sort of finality. Lawsuits take a long time to resolve, and even if they go to trial, the trial is not always the end point, and does not always bring the closure people are looking for. After the trial is over, the losing side may appeal. If the trial results in a large judgment, the plaintiff may have difficulty collecting it. After a lawsuit is over, an unhappy party may file another lawsuit. Even if a case is resolved by a final court decision, that doesn't stop people from thinking about the injustice of the result. And even the party that "wins" a lawsuit is often unhappy about the size of the victory or the amount of his lawyer's bill. I was once consulted about a dispute between a group of homeowners and a neighboring developer.  These parties had been warring for years, at tremendous cost to both sides.  While the settlement that was eventually proposed did not satisfy all of the goals of either side, what it did accomplish was to stop the bloodletting on both sides, and also to physically separate the activities of each group from the other.  Continued litigation might have resulted in bending one side's will to the other's, but settlement allowed both sides to go their separate ways.  

Often people don't realize just how consuming their dispute has been, and will continue to be, and they also don't realize just how relieved they would feel to leave it behind. Often they cannot even imagine letting it go. People may need help both understanding that they are trapped in a cycle of hurt and recrimination, as well as in visualizing the possibility of getting out of that cycle. So there is a kind of reconciliation that can take place even when the parties desire no future relationship and only want to put the matter behind them.

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