Craig Higgs, an attorney and mediator with Higgs, Fletcher & Mack, says most people come to mediation to avoid the risk of losing and the cost of finding out whether they are going to win or lose. (photo/alandeckerphoto.com)

The five stages of a project are: 1) wild enthusiasm; 2) hopeless despair; 3) search for the guilty; 4) blame of the innocent; 5) praise and honor for nonparticipants.

All of the above are especially true for lawsuits. Litigants may go into a case with the attitude of “Let’s squash them,” says Abby Silverman, an attorney and mediator with Baker & McKenzie. “But as you talk to them about the cost versus the gain….”

There are depositions to be taken, motions to be filed and discoveries to be undertaken. What once looked like a rapid “shock and awe” victory turns into tedious hand-to-hand combat — at three figures per hour. “Litigation is public,” says Silverman. “The question at some point is, ‘Is this the way you wanted to spend precious resources and time?’”

Once the case goes to trial, the outcome is determined by one or more strangers. Experts are hired to validate opinions. Whose experts will the judge or jury believe? As in the five stages of a project, the search for the guilty could very well become blame of the innocent.

Mediation can be thought of as an exit ramp from the congested and often slow-moving Highway of Litigation. The California Evidence Code (Sec. 1115(a)) defines mediation as “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”

Mediation can be used to resolve a wide range of disputes, from million-dollar patents to small claims. Lawyers can play a role at any point in the mediation process. If a lawsuit has been filed, the plaintiff has already hired an attorney and the defendant will soon be seeking counsel. A litigating attorney might, after evaluating the case, decide that mediation would be an appropriate exit strategy. While lawyers may act as mediators, many mediators are not lawyers but experts in a specialized field of knowledge.

“Most people come to mediation to avoid the risk of losing and the cost of finding out whether you’re going to win or lose,” says Craig Higgs, an attorney and mediator with Higgs, Fletcher & Mack.

Higgs’ involvement in the mediation movement stretches back to 1985 when he helped found the San Diego Mediation Center at the University of San Diego. “Being involved in mediation is rewarding because you’re helping people settle their own disputes rather than being involved in disputes,” he says. “When people solve their own problems they’re much happier, rather than having somebody else make that choice.” The mediation center is now part of the National Conflict Resolution Center.

Attorneys say keeping control over the terms of the outcome is the major benefit of using mediation to resolve disputes. Mediation also offers the parties a wider range of options for resolving disputes than would result from a lawsuit. “In court, mainly what you get is money,” Higgs explains, “but in mediation you can construct a solution, such as in an intellectual property case sharing a patent or devising a licensing agreement, which you cannot get in court.”

The list of cases that cannot benefit from mediation is brief. “If it’s something that is truly a matter of principle, or in which a civil or constitutional right is at stake,” Higgs says, “then it may need to be decided by a court.”

By law, $8 of each case filing fee in the county goes to alternative dispute resolution (ADR) and helps support the services of the San Diego-based National Conflict Resolution Center (NCRC).

The center provides mediation services for community disputes including neighbors, landlord-tenant, consumer-merchant, divorce mediations and commercial disputes from employment to construction. The center’s influence reaches beyond San Diego, says Robin Seigle, director of the NCRC’s Business Center. “We have a training contract with the Transportation Security Administration and a network of mediators around the country,” Seigle says. “We’re also doing a lot of training and credentialing in Germany and Bulgaria.”

Although most domestic disputes can benefit from mediation, there are limits. These can include cases in which there is a history of domestic violence or substance abuse issues, Seigle says.

Another kind of case that may be destined for court is one in which “one of the parties is being…unreasonable,” says Lynne Lasry, a trial lawyer with Sandler, Lasry, Laube, Byer and Valdez. “But my personal philosophy is that it’s better to make the effort to resolve something than go into a full-blown trial.”

Abby Silverman, an attorney and mediator with Baker & McKenzie, says litigants must ask themselves whether they want to spend precious resources and time on the process. (photo/alandeckerphoto.com)

Skilled mediators know how to separate emotional issues, like not wanting to admit defeat, from legal issues and come up with mutually beneficial and creative outcomes. “A creative outcome might be making a disputed payment to a charity or doing business so that you swap credits instead of money,” Lasry explains.

Mediation can be undertaken at any time in the process or before a lawsuit is filed. Higgs says a potential litigant should have an early conference with an attorney to evaluate the risk and reward of litigation. Once a lawsuit is filed, early mediation is better, before attitudes harden and parties dig in their heels. “Generally speaking, the earlier the better,” Higgs says. “Even if the case doesn’t settle, you learn more about your case and about the other side, which then streamlines discovery. You can learn more in an hour of mediation than you can in a month of discovery.”

Often, a taste of the battle ahead reduces the appetite for more. “You might have to go through a deposition to get a reality check” about key facts or positions in a case, Silverman says. Discovery may also uncover the existence of witnesses and the occasional “smoking gun” that affects settlement negotiations.

A litigator with a reputation as an effective trial lawyer can also be an incentive to mediate. “Litigators who have tried a lot of cases and have the trial experience to back up a threat to litigate,” says Lasry, “may be more persuasive in advising people to settle.”

Often, the best way to avoid an expensive fight is to begin talking about a solution. “Just getting the parties to the table means you’re 50 percent there,” Silverman says.