What would you rather be doing?

What would you rather be doing? This is a fair question to ask litigants, or anyone engaged in conflict, to consider. At our core, we are all generally the same. We have hopes and visions of how we would like things to turn out. I've yet to meet a person whose purpose is to enter into legal conflicts. That being the case, litigants and their lawyers should frequently assess whether continued legal conflict promotes, rather than erodes, a company's or a person's vision.

Businesses and the people behind them almost always have a vision of what they want to be, even if that vision is not well-defined. Rarely does a company envision its success as being pulled into litigation. So why would a business decide to litigate? If you dive into this question, the answer is often some variation of needing to correct a wrong through litigation to achieve a legitimate purpose. In other words, litigation is justified by the company vision. That's a fair answer. But it's just the starting point.

The danger arises when continued conflict begins to overshadow the reason litigation began in the first place. What began as a means of furthering a larger purpose can often become its own beast, untethered to the overall success of a company or person. This phenomenon often happens without notice. There is usually some catalyst or threshold of commitment that causes people to dig in their heels and define a new purpose of "winning" the dispute. This is where things go off the rails, and the goal of "winning" is elevated above true success.

To avoid that danger, litigants and their lawyers should frequently revisit the initial goal of litigation. They should reassess the risk and opportunities of litigation at various stages of a lawsuit, and compare that analysis to the vision/mission/purpose that must hold the primary position. The same should be done for settlement options. If settlement options exist that are better suited to promoting the overall vision of success, then continued litigation is most likely unjustifiable. Sometimes litigation is justified through trial, but that is not true for the great majority of disputes.

Asking yourself and litigants, "what would you rather be doing?" helps to get the focal point of a dispute where it belongs: On the vision that people work hard to achieve. Our mediation method is designed to inquire into the reason litigation began and whether it remains the best method of manifesting your purpose.

To learn more, or to get a conversation started, please contact Marc Menkveld at marc@menkveldlaw.com.