AVOIDING THE UNCERTAINTY OF TRIAL OR WHY IT MAKES SENSE TO MEDIATE by David B. Harwi, Esq.

Recently I participated in specialized arbitrator training. My class included 19 highly educated, successful business persons, lawyers and educators. One of our exercises required us to break up into three teams. Each team was given the same fact pattern. We were told that the respondent was liable to the claimant. The teams were only required to determine an appropriate award, i.e. money damages. The facts suggested that the damages could range from $3,000 to $15,000. After deliberation the groups reported their results to the instructors. One group made an award $3,000, another $7,500 and the third $15,000. The instructors indicated that there were yet other results at other trainings.

How can this be? It’s the risk of litigation, whether in court or in arbitration.

Mediation avoids the capriciousness of litigation and provides an opportunity for the disputants, not the court or arbitrator, to define the outcome of their dispute and be satisfied. Doesn’t that make sense?

©Triage Mediation Services Inc. 2002