Mediation trumps litigation5 min read

About the only thing worse than losing the person one once loved and suffering the emotional damage that ensues from a divorce is having to pay two sets of lawyers for the associated legal services.

Even in simple cases, the financial damage to both parties can set the participants back for decades; in complex cases, it can mean bankruptcy.

In Sedona, there’s a relatively inexpensive and highly successful alternative to litigation, not just in divorce cases, but for almost every sort of civil case including workplace, landlord/tenant, consumer, business, negligence and personal injury and auto/medical malpractice.

Barbara Breitbart, a psychologist, and Joseph Montedonico, an attorney, both with decades of experience in their respective professions, recently formed Mediation Services of Arizona to offer residents in the community a way to equitably resolve disputes without going to court.

Both come with distinguished credentials: Breitbart a recipient of the World Health Organization’s award for lectures on stress and the diseases of civilization and Montedonico selected as one of the Top 30 Lawyers in Washington, D.C., and both are members of the Association for Conflict Resolution.

“I’ve seen the effects of lawsuits and litigation — I come to this from the vantage point of how toxic and stressful it is,” Breitbart said. “Litigation not only results in a physiological state of diminishment, but psychologically people can’t move on in their lives.”

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Montedonico, who practices law in Washington, D.C., brings a strong desire to help each side settle quickly and for little money.

“There’s a joke that goes around about a small town lawyer who had a very poor client base until another lawyer came to town and both got very wealthy — it’s a joke, but also a reality,” Montedonico said. “For lawyers who get paid by the hour — many of them have no incentive to resolve the case early because it ends their economic interest.”

In many if not most cases, even after two parties spend months preparing to go to court for a hearing, they wind up in the same situation that could have been taken care of in a few hours of mediation time.

The big difference is that going to court can cost tens of thousands and even hundreds of thousands of dollars, taking months and sometimes years to complete.

Mediation costs as little as a few hundred dollars, or, in more difficult cases, a few thousand dollars, and reduces the amount of time required to several hours in simple cases to a dozen hours spread over several weeks.

Even better is that in mediation, Breitbart and Montedonico, more often than not, see their clients walk out the door as friendly acquaintances rather than bitter enemies.

Robert Brutinel, presiding judge of the Yavapai County Superior Court, is a strong proponent of mediation.

“People are happier when they reach their own agreements rather than having the judge impose them,” Brutinel said. “Anything that gets people to talk benefits the system of justice and the individuals involved.”

How that happens is the difference between the process of mediation and the process of litigation.

“You give each person the chance to talk about their feelings for the future so that they can go forward. You ask questions — how would you feel if this happened and what do you think would be the best approach,” Breitbart said. “Then you get them talking to each other in a way that allows them to see each other as human beings with their own feelings and this leads to amicable agreements.”

The self-determination involved is also far greater during the mediation process than in a courtroom.

“It’s a crapshoot whether you’re going to get what you want from a jury and  a judge — I’ve been involved with clients who were offered a million dollars to settle — they refused and then the jury gave them nothing,” Montedonico said. “Isn’t it better for two intelligent people to come to an agreement themselves?”

In fact, according to Brutinel, 5 percent or fewer cases ever go to trial with most of them settled just before going to court.

“It’s much better to come to an agreement earlier than that, before attorney’s fees get to the point where they drive the litigation,” Brutinel said.

In cases complicated by child custody or business opponents who can’t come to terms, Breitbart and Montedonico use a series of caucuses to explore common ground.

“We ask one person to leave and the other to talk one on one so that we can get more information, asking how far they’re willing to go,” Breitbart said. “We don’t share this with the other party, but we speak to them and ask the same questions, then bring them together to try to lead them to a resolution.”

Part of the reason this works is that everything that is said in mediation is kept confidential and is not subsequently admissible in court, terms that are agreed to by both parties in advance.

Even those who choose mediation can have their own attorney present.

“In my role as mediator, I do not give legal advice; our job is to get the attorneys talking, get the parties talking to each other,” Montedonico said. “For those who do not bring their attorney, we present to the parties that there’s someone here with legal knowledge involving litigation.”

Brutinel said that the only downside to mediation is that if it’s unsuccessful, it becomes an added expense.

Larson Newspapers

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