By Stephen R. Smith, Ph.D., J.D.
Recently a colleague asked me to write a “blog” on any subject that I desired. Quite frankly even though I have heard of blogs, I was a little unsure what was expected when writing one. After some research, I found that a blog can range from a simple online journal of one person’s thoughts to forums on specific subjects of interest involving many people.
Armed with this information, I decided to write about Mediation. No, not meditation — mediation. If you are unsure about the exact meaning of mediation (as I was about blogs), here is a definition from Black’s Law Dictionary: “A method of nonbinding dispute resolution involving a neutral third party who tries help to the disputing parties reach a mutually agreeable solution”
The job of this neutral third party (mediator) is to help disputing parties overcome the dispute and reach a solution. Some readers might now be saying “I thought people went to court to solve a dispute.” Unfortunately, all too often this is true. Don’t get me wrong, there are many times when the courtroom is the proper place to solve a dispute, but it should not always be the first choice.
I have often heard the truism that mediation is the exchanging of hope for certainty. When disputing parties bring their disagreements to court they are hoping that the judge will rule in their favor. In mediation, with the help of the neutral mediator, the parties have the opportunity to develop a solution that will give them some certainty that their position is addressed and incorporated into a final solution.
What is my explanation of a Mediator’s role? The person without a dog in the fight helping others to stop or avoid a dogfight.
By choosing court as the forum to negotiate, the parties are feeding the proverbial Junkyard Dog. Jacob Marshall, in his article The Myth of the Junkyard Dog Lawyer, writes:
“Many like the idea of hiring a lawyer who is billed as a “junkyard dog,” and for some understandable reasons. Business disputes and lawsuits can be contentious, threatening and emotionally draining situations. A person or company may have been cheated or be wrongly accused of harming someone else and the financial stakes can be very high. When faced with this situation, some folks think their best bet is to hire the lawyer who promises to wage a down and dirty, no-holds barred war that will destroy their opponent’s will to fight (and perhaps even live) and make the “bad guy” regret the day he ever met the client. While this strategy may sound perfect when you are feeling threatened and harassed by a lawsuit, it rarely delivers the results it promises.”
A party with a junkyard dog philosophy is saying that their position is correct and that the other person is wrong. This may well be true in some circumstances, but it is more likely that both parties have some merit to their argument.
The practical attorney should always look to solve a dispute by mediation. An attorney who immediately assumes an adversarial posture may be doing his client an injustice.
The “Junkyard Dog Lawyer” may be necessary because lawsuits can be combative; however, everyone would be better served if mediation was the first card to be played.
