David Bernthal/Off the Bench: Three disputes, three jobs well done

David Bernthal/Off the Bench: Three disputes, three jobs well done

Last month, I had the opportunity to serve as mediator in three commercial disputes. They involved three sets of individuals who had entered into similar but unrelated business relationships with a particular corporation. The written agreement in each situation was lengthy and detailed. As sometimes happens, things did not go as expected and each side found fault with the other.

While I cannot reveal confidential facts about the people involved, their dispute or the settlement, the experience reminded me of some things that I consider important and worth sharing.

The first is somewhat lighthearted but provokes some thought. In the reception area of ADR Systems in Chicago, where the mediations were conducted, hangs a picture of a woman in business attire. She is holding a piece of cardboard bearing the words "It Must Be Somebody's Fault." The first time I saw that picture I just chuckled thinking it was a clever ice breaker for that setting. This time I thought about it more and realized it is a powerful statement regarding how our society thinks about things. We do not like to admit we made a mistake or did something wrong. If something happens in our life that we do not like, there must be someone or some entity to blame. It was certainly true in the matters being mediated. Each side was convinced that the other caused a financial loss.

The next points involve the role of the lawyers in all of this. My chosen profession catches a lot of heat when the subject of litigation comes up. However, I observed several aspects of the role of lawyers in these matters that I feel the need to point out.

First, lawyers had prepared the lengthy documents mentioned above. The attorney who prepared them undoubtedly tried to anticipate what could go wrong and then draft terms that would not only clearly define the rights and responsibilities of the parties but also provide mechanisms for dealing with problems if they arose. While the disputes that I mediated prove that sometimes conflicts arise despite careful document drafting, efforts to prevent problems in advance are less expensive than litigating. Even in these disputes, the language of the documents proved to be a huge help to me in my efforts to assist the parties in their settlement efforts.

In each situation, the individuals entered into an arrangement involving significant financial consequences. Each made an initial monetary investment and made a commitment that would require the payment of additional expenses for years to come. Despite the significance of the deal, none of these people consulted an attorney before signing and paying over the initial investment. I was astonished to hear that. I am convinced that a lawyer examining the details of the transaction and the terms of the contract would have pointed out some important aspects that likely would have led to a reconsideration of entering into the contract. The likely fee for such work would pale in comparison to the risks taken and the cost of litigation.

The final point has to do with the role of the lawyers in the resolution of the dispute. I have avoided referring to the case or cases because none existed. Certainly they could have come into being by the filing of a lawsuit. The lengthy agreement did not mandate mediation or arbitration. Nevertheless, there was no rush to the courthouse. The lawyers knew and the clients accepted the fact that litigation would potentially take a couple of years. They all realized there would be considerable expense and each side accepted the reality that an adverse result would be somewhere between painful and disastrous. As a result, they chose to try to resolve their differences through mediation. There were no guarantees of success. Expense of the mediation would be incurred regardless of the outcome. No one had a result forced upon them. The parties remained in control. While no participant got everything desired, the resulting settlements saved time, stress and money while protecting against the total loss scenario.

While I believe the advice from a lawyer could well have prevented the problem in the first place, the people investing their money chose to not seek that advice. Fortunately, when legal counsel got involved, serious problem-solving followed.

I had never met the lawyers prior to these mediations. I may never see them again. I shall remember them with the knowledge that they, like the vast majority of their fellow lawyers, made me proud to be a member of the profession.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate. He is of counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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