Tuesday, September 26, 2006

Uncertain Results Under the Law: A Reason for Mediation

Uncertainty in the outcome of any litigated case can be yet another very good reason to have your case mediated. Even when the law seems clear in a particular area, the outcome of a litigated case is dependent on many factors, including the specific facts of your case, the particular judge and his/her reading of the law, the competency of your attorney and your opponent's attorney, and the nature of the admissible evidence in your case. If it is a jury trial, then add to the unknown factors 12 individuals with varying perspectives as well.

These factors lead to uncertain results for any individuals in any type of case. This is why no matter how good your case and your attorney may be, your attorney can never guarantee the results of a litigated case. He/she may tell you that your case has a good chance, but is that a 40% chance or an 80% chance? And what do those numbers mean if you are in that "losing" percentage? Can you afford to lose?

Now, add to all of the unknown factors a new area of law that is developing. This means that attorneys, judges and juries might be making new law with your case, and nobody has any idea what the outcome might be because that area of law is "unsettled." And you are paying the fees and costs on this even bigger gamble.

There may be litigants who have the time, money and mental or emotional resources to deal with such huge risks. For others, the option of mediation allows the participants to shape their own results and ensure that the investments they have made in their case will be fruitful.

In mediation, there is no "winner" and "loser" - the goal is to find the "win-win" in every situation.

Read The San Francisco Chronicle article in my next post on Unsettled Law in Same Sex Marriage/Partnership Dissolutions for an example of an unsettled area of law. When child custody rights and property rights are at issue, the risks are even greater. Mediation is the only path to take with confidence.

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