The lesson of Bleak House
The classic Charles Dickens novel, Bleak House, illustrates in the fictional case of Jarndyce v. Jarndyce, that the cost of litigation may outweigh the benefits. The case involves Jarndyce who dies unmarried and intestate with a large fortune. The potential heirs all file lawsuits that continued for many generations. Eventually, legal costs and attorneys fees absorbed the value of the entire estate, and the potential heirs were left with nothing.
On December 8, 2012 the BBC and its Q1 series claimed that Jarndyce v. Jarndyce was actually based on the case of William Jennens from Acton Suffolk. The case of Jennens v. Jennens commenced in 1798 and was abandoned in 1915, 117 years after the legal costs and attorneys fees had completely exhausted the Jennens estate of its funds. Jennens had died with a fortune estimated at over two million pounds, which would be worth an excess of 200 million pounds in 2012 (approximately $400 million).
Arguably, the parties would have been better served to at least consider the possibility of mediating
In litigation each party is represented by an attorney who acts as a zealous advocate for his or her client. The process is often adversarial rather than collaborative and sometimes disagreements become worse. Communication may be stopped between the parties and is often conducted solely through the attorneys. The parties give up their final decision-making authority and leave their fate up to a judge.
The mediator helps the parties focus on the most important issues, explore various options, find areas of compromise, and reach a decision that will best work for everyone. Mediation generally minimizes adversity, preserves relationships, and allows parties to have more control of the final outcome.
Opting for mediation does not mean that you lose your right to go to court. At a minimum mediation can define issues, identify areas of agreement, and limit areas that may need to be litigated. This will save the parties both time and money in litigation costs later on.
Mediation usually takes much less time than mediation. In Spokane County court dates are set almost a year from the date of dissolution. Mediation sessions can be scheduled around your time constraints. Research on divorce shows that mediation usually takes a matter of months, whereas litigation time is usually measured in years.
Mediation is almost always less expensive than litigation. A contested case argued in Spokane County will typically cost 5-10 times as much as a mediated divorce. A July 2005 article in Money Magazine reported that going to trial in a divorce case can cost $20,000-$50,000 compared to $3,000-$10,000 for mediation… and this was almost 10 years ago. The cost of litigation has continued to escalate.
It’s easy to become fixated on what a person can “win” from going to trial. However, trial court judges have a broad range of discretion in deciding cases. Frequently, a judge’s decision doesn’t represent the wishes of either party completely. If you are in control of the decision you can determine the areas in which you can be flexible. Often parties agree on more issues than they realize.
Additionally, parties don’t think of the time, energy, stress, and uncertainty they could experience in litigation. Although parties might not realize it in the beginning, a long trial can be extremely traumatic and very taxing on their health and wellbeing. Opting for mediation may be more valuable in the long run because it allows you to shift your focus from the dissolution to moving on with your life.
Research shows that parties who choose mediation report a higher rate of satisfaction and are more likely to comply with the terms of their agreement. That is parties are more likely to honor the agreement, abide by their financial obligations, and follow parenting plans and/or follow other scheduling requirements.
Common topics include:
- Marriage and relationship issues such as divorce, separation, pre and postnuptial agreements, domestic partnerships, division of assets/property, and spousal support.
- Parenting issues such as custody, parenting time/parenting plans, child support issues, health issues, and education/religious decisions.
- Family estate issues such as wills, trusts and inheritances, real estate, dividing and sharing assets,
- Family business issues such as investments, succession, bankruptcy, sale, and credit and debt issues.
- Adult family and Elder issues such as healthcare proxies, living wills, directive to physicians, financial planning, residence options, and long-term caregivers/long-term care, retirement.
- Contract issues such as interpretation of provisions, commission, paid leave, salary, and failure to perform.
- Landlord-Tenant issues such as duties of the landlord, duties of the tenant, return of deposit, rights under the lease, and termination of the lease.
- Workplace issues such as tenure, reconciliation, contract terms, and employment law considerations.
- Education Law issues such as negotiation/review of Individual Education Plans (IEPs), rights of individual students in public/private schools, and parameters of authority.
- Foreclosure under the Washington State Foreclosure Fairness Act.
- Mari Luna is a trained Washington State Mediator under the Foreclosure Fairness Act.
- If you are in danger of a foreclosure regarding your home, call us for information regarding attorneys and/or HUD Housing Counselors who can represent you during your foreclosure negotiations.