Wednesday, September 20 , 2017, 8:10 am | Fair 60º

 
 
 
 

Frank Ochoa: Case for Alternative Dispute Resolution Often More Beneficial Than Lawsuit Route

“I’ll see you in court!”

With the phrase, a common salutation of friendship upon parting from another, and an expression of a looking forward to the next opportunity to converse, such as, “I’ll see you soon,” or “Until we meet again,” is transformed into a threat.

This common expression means, “I am done talking to you” or “There is nothing more to say.”

The parties have usually been involved in some sort of common enterprise: a business arrangement that meets the needs of each, or some form of mutual property ownership, or a contractual arrangement that allows each to benefit from the other, or even perhaps a marriage.

They have become unable to work out their problems, so they waive the litigation sword and bid their former compatriot, now an adversary, to cross the line and go to war.

Our society utilizes its justice system as the forum to resolve nearly all of its disputes. One hires a lawyer, files a lawsuit, serves notice of the lawsuit on the opponent, and engages in protracted “discovery” and law and motion proceedings — all heading toward the doorstep of trial.

By the time one reaches a trial proceeding, resources have been depleted, feelings have been trampled, and the ability to focus on other important life events has dissipated.

And then comes the trial. It will be a public airing of a dispute the parties are showing the world they were unable to resolve themselves. They are engaging in an admission of failure.

They are laying their problem at the doorstep of another. It might be a judge, or it might be “12 citizens, good and true,” but someone else is engaged to resolve the dispute. Many cases need that trial process to resolve the dispute; many do not.

The litigation process is geared toward ascertainment of the truth. Initially, the trained lawyer may sense that the client’s problem doesn’t pass the “legal smell test.” Investigation, legal research and consideration of filing a lawsuit before time constraints close the door on the client’s rights all have to be considered.

The merits of a controversy that implicate legal duties and obligations are often not sufficiently known early on. Information obtained through discovery processes is needed to enable the parties to arrive at a just resolution.

The system provides mechanisms to locate the “smoking gun” that either solidifies, or dispels the legitimacy of a cause of action. Or to demonstrate the broad factual landscape that, in its entirety, might tip the scales of justice in one direction or the other.

The good lawyer knows the questions to ask and the mechanisms for ferreting out those true facts. And law and motion proceedings can focus the litigation on the true merits of a controversy in the litigation stream.

But the parties often expect that they will achieve vindication in the kingdom of the law. In their imaginative view, the royal arbiter (read judge) will decide who is right and who is wrong. The victor will be knighted by the regal touch of the sword on the shoulder; and the loser will feel the wrong end of that sword’s wrath, and the righteous side will prevail.

This, of course, never happens. The end result of a trial is often something neither side is completely happy with. And then there are post-trial motions, and petitions for re-hearing, and appeals ... and on ... and on.

Other methods exist for the resolution of disputes. They are less costly to the pocketbook and to the emotional well-being of those in the fight. They are less time consumptive. They are out of the public’s eye. And they can mend relationships so the parties can have the chance to co-exist, or even work together in the future.

These methods include mediation, arbitration, neutral case evaluation, and special master services, among others. The common thread that runs among these alternative dispute resolution, or ADR, processes is that a “neutral” is engaged to focus on the impediment between the parties with the goal of getting that dispute into the “rear-view mirror” for each disputant.

The process occurs outside of a courtroom in a private location where the parties are more able to “let their hair down.”

The most common ADR processes are arbitration and mediation. In an arbitration hearing, a neutral manages a quasi-judicial proceeding in which the parties present evidence and argue the law. The arbitrator’s decision might be binding, such as an agreed-upon final resolution to the conflict. Or it might be nonbinding, such that the parties retain the right to “see you in court.”

Mediation is a process with deep historical roots, but with a fairly recent formal acceptance into our society’s dispute resolution processes. It is the least adversarial form of ADR.

A neutral is engaged to work with the parties, to identify the issues underlying the dispute, to manage the dialogue between the disputants, and to help them arrive at a mutually agreeable resolution to the dispute.

A lawsuit in court is formulaic in nature. The judge knows the evidentiary links the parties have to demonstrate at the proper proof level in order to prevail.

If successful, the appropriate award is determined by the law of damages, or remedies. But a mediator is not restricted to “the formula.” What might be acceptable to the parties as a reasonable remedy is often something outside the normal bounds of the law and, at times, something neither side could have imagined previously. The parties never abandon the power to frame the resolution of the dispute. They maintain control.

Most judges are good at conducting trials. Some are relatively unfamiliar with, or even suspicious of, other forms of dispute resolution.

Lawyers have an understandable economic interest in the longevity of the battle. A rare lawyer will say to his or her client, “Do you want to write a check to the other side today, or do you want to pay me potentially substantial fees to litigate the battle, when the end result might be that you have to write the other side that same check when it’s all over?”

So, one must ask before angrily walking away, do I really want to end this conversation with “I’ll see you in court!”?

For some disputes, the best next step is to say, “Why don’t we hire a neutral, a mediator or an arbitrator, to help us resolve this dispute?” One might save time, money, emotional energy, loss of control and a continuing relationship in the process.

California law requires all courts to provide mediation in all child custody disputes. The California judicial system website has a great deal of valuable information about family law matters in particular, and other types of courts cases in general. The Santa Barbara County Superior Court’s website links to the Family Law Division, which provides instructions on how to schedule a mediation.

State law requires that any court filing involving a disputed child custody or visitation issue go through a mediation process before going to court.

In terms of other types of disputes one may encounter, you can also get information about the mediation process and available mediators at the Superior Court’s CADRe (Court Administered Appropriate Dispute Resolution) program. The program had been deemed a model for other courts throughout California, and the website has information about different ADR processes and lists of neutrals who can be engaged to assist in the resolution of any dispute.

Frank Ochoa is a former Santa Barbara County Superior Court judge who retired in January 2015 after 32 years on the trial court bench. He designed and implemented the Superior Court’s CADRe (Court Administered Appropriate Dispute Resolution) program in the late 1990s, and currently serves as a private neutral in mediation and arbitration cases. The opinions expressed are his own.

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