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Simple: either 1) they don't understand the legal system, and how lawyers are trained; or 2) they truly feel their case is so strong that they don't have to (they will either get the case dismissed so that there will be no trial, or they will simply wipe out their opponent at trial); or 3) the other side utterly refuses to mediate.
So, let me break those down.
Before doing so, let me give you just a little bit of background about me. I have handled literally thousands and thousands of cases, which have included a ton of civil litigation, bankruptcies, divorce and custody issues, criminal matters, and administrative matters.
In fact, I dare say I have handled more cases than just about any other attorney in the history of Utah (heck, I've handled over 1,800 bankruptcies alone). I have appeared in front of just about every court in Utah, including the Utah Court of Appeals and the Utah Supreme Court. I've also appeared in front of administrative and federal judges, too.
Further, I have trained over forty (40) attorneys, and given seminars to attorneys about how to negotiate for their clients, so that cases get resolved fairly and quickly. In other words, I have been around the block many times.
Remember, most cases settle. The question is when and how they settle. So, it really comes down to this: will you eventually settle because you are finally financially and emotionally wrecked (after months or years of litigation, and after you've gone through various attorneys)? Or, will you settle early on, and avoid all the drama and expense of the court system?
REASON 1: PEOPLE DON'T MEDIATE BECAUSE THEY DO NOT UNDERSTAND THE LEGAL SYSTEM, AND HOW LAWYERS ARE TRAINED.
FACT 1: The legal system is adversarial, so your attorney feels he or she MUST FIGHT for you. Keep in mind that the other side also has an attorney that feels he or she must fight for your opponent. And who pays those attorneys for the fight? The clients. What the clients may not know is their attorneys are friends, or may work on a case together down the road. They may even refer clients to each other. So, if you want to fight remember this: attorneys are good at fighting.
Before I was an attorney, I was a negotiator. When I went to law school, I was stunned at how combative most the law student were (even the nice ones). Oh, they wanted to debate everything! So, BYU offered a negotiations class, which I signed up for. I was stunned at how poorly the students negotiated. They always tried to get a lop-sided deal that glaringly favored their side. Things just do not work that way. Mediators understand that far better than lawyers do.
FACT 2: Most attorneys are not trained in the art of negotiations; rather, they are trained to create documents and respond to them. Read that again — over and over again! Thus, the "process" just goes on and on. So often I hear this: "Gee it's been over a year, and I have paid my attorney over $10,000, and we are really still right where we started." Yet, your attorney may have three boxes of documents that relate to your case.
FACT 3: Most (but certainly not all) of the information you get from costly depositions is typically worthless. You can easily spend $800 or so on just one deposition, and get maybe one or two useful pieces of information out of it. (A good mediator can often get all the information you need in a couple hours, plus in mediation, you can also uncover your opponent's entire legal strategy.)
FACT 4: The court process is complicated, but the facts are usually not – and the jury decides the facts, not the process. In reality, most cases come down to one or two things. The problem is people want to overinflate what they think they should get, and underinflate what they think the other side should get.
REASON 2: SOME CLIENTS TRULY FEEL THEIR CASE IS SO STRONG THAT THEY DON'T HAVE TO MEDIATE. IN OTHER WORDS, THEY ARE CERTAIN THEY WILL EITHER GET THE CASE DISMISSED SO THAT THERE WILL BE NO TRIAL (OR WIN SUMMARILY), OR THEY WILL SIMPLY WIPE OUT THEIR OPPONENT AT TRIAL).
FACT 1. It is very easy to file bankruptcy in the United States, hiding assets can be a problem, and the court process and appellate process can take a huge toll on a person's time, money and mental stability. I have seen court cases destroy marriages, even though the couple had a good case against somebody else (in other words, the couple was on the SAME side of a good case). People typically will do what they have AGREED to do. When people are forced to do something by a court, they typically resent losing, and seek ways to screw up the other side's victory. Remember: a person convinced against his will is of the same opinion still. So, yeah, maybe you do win summarily, or get the case dismissed, but does that yank out the roots of the problem if both sides still hate each other? Plus, in mediation you can air out all your true feelings, whereas a judge is going to make you stick to the rules of evidence, and he or she is only going to hear what they deem "relevant."
FACT 2. The United States Supreme Court, which is supposed to be composed of our best legal minds, often vote 5-4 on matters. In other words, do not be so sure the judge or jury will see things your way. They may, but I can tell you COUNTLESS stories of stunned litigants. There is a reason why we have courts of appeal. Further, in mediation, you can get closure.
REASON 3: THE OTHER SIDE UTTERLY REFUSES TO MEDIATE. That may be their lawyer talking. Attorneys CANNOT ever speak to a represented party, but parties are typically free to speak to one another. A cordial email inviting mediation may be accepted. Agree to mediate at "their place." Agree to "let them pick the mediator."
Whatever it takes, get your case to mediation. After all, what you have to lose is the headache of the legal system, and the VAST MAJORITY of mediated cases settle (you can even agree to give the Mediator the power to issue a ruling if things do not settle, which ends the matter, and is enforceable in court).
We offer mediation and arbitration.
We Typically do not Charge a Retainer! We can even set up your mediation for evenings, early mornings (as early as 5:00 AM), or even on a Saturday.
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