Litigation Avoidance

As some of you may know, I am what is commonly referred to as “recovered” in the legal profession, in that I have a law degree but don’t practice. I realize that I share with many people a disdain for lawyers generally; it is just that since I went to school with them and know where they’re coming from, it is a particularly special disdain. Allow me to tell you from experience that lawyers have absolutely no reason to be such assholes. Most of them just aren’t that smart. It is just that life is a very complex game of sport and lawyers are the only ones who have an idea about the rules. Unfortunately, most of their ideas just aren’t very good ones.

So I spent almost the entire afternoon yesterday in a mediation session over a lawsuit I filed against a gentleman who was inattentive just long enough to rear-end my car and blow a disc in my back. Texas courts have, over the past few years, ordered much litigation into mediation to not only alleviate backlog in the courts, but to also see if the parties involved can work out their differences in a less adversarial setting. I personally think the goal is lofty and in theory a good idea. About 80% of cases settle in mediation, with another 15% settling prior to trial. I have never been a party to a lawsuit like this and definitely agree with the contention that our society has become over litigious. Now, with all that being stated , let me tell you right now that mediation sucks beyond the bounds of your wildest imagination.

Bet I got you there just now, didn’t I? I’ll bet you thought I was going to extol the virtues of mediation. Oh hell no! Mediation really sucks. My very nice lawyer (he’s part of the 1% tarnished by the other 99) and I blew our entire afternoon (and part of our evening) with some blowhard schmucko and a merry band of insurance cronies playing the “your case isn’t really that strong” game, coupled with all the exciting back and forth of two slugs playing ping pong. And my case, which was very strong, by the way, actually settled. So why am I all down on mediation?

Allow me to provide you the outcome in a nutshell. The side who is entitled to recover accepts less than what they perceive the value of their case to be, while the side who owes the damages pays more than they actually intended to pay; and then everybody signs some papers and leaves with a general malaise. Woo-freakin-hoo…let’s go home and catch some dinner with people we actually like. Mediation has nothing to do with goodwill and everything to do with avoiding the time, cost, and general aggravation of litigation. It exemplifies, in purely legal terms, the laziness and general aversion to risk that has become epidemic within our society.

Sure, I could have chosen to not settle. I could’ve seen my case through litigation, and I am confident that I would have prevailed. However, like the vast majority of people involved in lawsuits, I freely made the decision to just make this mess go away. I was involved in this accident over 2 years ago. I will forever be affected by my injury, and no amount of money will ever heal my spine. So, what is the real choice when it comes to settlement vs. litigation? You can take a check for a little less than expected, or spend an additional six or so months spending more money for discovery and litigation prep than your time and the extra couple of bucks is worth. So, for all the suckage of mediation, litigation is far worse. I still don’t recommend it.


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