by R. Lynette Mancuso, Board Certified Marital & Family Lawyer
There are a myriad of reasons why resolving disputes outside of court is advantageous to protracted litigation. As an attorney for over 29 years and as a mediator of over 1000 cases, I have experienced many of these reasons firsthand. Here are some of the top reasons to consider settling a dispute, either through negotiation, mediation or a collaborative process, instead of going to court and allowing a judge to decide your fate:
Human nature is such that when we are part of the decision making process, rather than being told what we must do by a judge, we have a much greater sense of “ownership” in the process, as well as satisfaction with the outcome. We experience a greater sense of power and participation in the process. We get to control our own destiny. Some refer to this concept as self determination.
Statistically, it has been proven that agreements reached outside of court have a higher degree of being honored, than decisions imposed on individuals by a judge. Therefore, by resolving issues without court adjudication, the parties increase their chances of avoiding the need for future legal proceedings to enforce or modify the agreement. This, in turn, saves significantly in terms of time and money that would otherwise be spent on future court battles.
In settlement scenarios, the parties have the ability to craft an agreement in a way that best suits the particular parties and their situation. Although we have many fine judges, a judge is restricted by the law in what he or she is allowed to do. In settlements outside of court, the parties have the option of being much more creative and are not nearly as limited as the judge must be in what is and is not allowed.
There is typically a significant savings in terms of time, money and energy when matters are resolved outside of court. Trial, on the other hand, involves countless hours of preparation, not to mention lost sleep and hours of preoccupation, thinking and worrying about the litigation and what may happen in court. This equates to huge financial and opportunity costs.
Resolution outside of court creates closure for the parties and certainty as to the outcome. In contrast, going to court has been compared to signing the bottom of a contract, handing it to “the stranger in a black robe” i.e. the judge, who is then empowered to fill in all the terms of the contract dictating your future, and you have to live with it. Out of court settlements take away the time, risk and expense of going to court, wondering what the Judge will decide, and wondering if either or both parties will appeal the judge’s decision. With out-of-court settlements, the parties have the freedom to move forward with their lives.
So, before proceeding down the path of litigation, consider the alternatives available to you for dispute resolution. In all likelihood, you will be glad you did.