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Conflict Management "How Dare You Sue" by Bryan Sanders |
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| The story is told
of how Abraham Lincoln, while practicing law in Illinois, helped resolve
a land dispute between two farmers through the process that we now call
mediation rather than through the court system. He decided to involve
himself in the dispute, not to make money,(indeed herefused a payment
from the parties), but tohelp bring peace to a conflict. As a lawyer,
he no doubt believed in the right to sue someone when the situation warranted,
but he also saw conflict resolution as a process that didn’t have
to start with the filing of a lawsuit. Former Associate Justice of the Supreme Court Sandra Day O’Connor expressed the thought this way in a speech some years ago: “The courts of this country should not be the places where the resolution of disputes begin. They should be the places where disputes end---after alternative methods of resolving disputes have been considered and tried. The courts of our various jurisdictions have been called the ‘courts of last resort.’ ” Too often when disputes arise people think first of litigation, rather than the multiple steps that could be taken to avert a lawsuit. The Apostle Paul addressed it this way to the Corinthian church: “If any of you have a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?” would not put it as harshly, but would ask the question, why are you giving up your liberty and freedom to resolve the dispute on your own to a third party who knows nothing about you or the situation? At a time when people are concerned about their rights and liberties, it is distressing to watch the number of lawsuits rise in this country. While there are some matters that cannot be resolved by private negotiation and some matters that should not be resolved through the alternative dispute resolution processes, many of our conflicts could be resolved by negotiation between the parties first or possibly by a mediator who can assist individuals in reaching a mutually acceptable agreement as to the issues of their dispute. Another step that can be taken before the filing of a lawsuit is a process called arbitration, the use of a neutral third party to render a decision based on evidence presented by the parties. The benefits of using alternative means to resolve disputes are plentiful. The alternative dispute processes are private, they do not become public record like a lawsuit, they are many times faster than a lawsuit and less expensive and they preserve relationships in the majority of the cases. Our first President, George Washington, saw the value of these principles
by including an arbitration clause at the end of his will to resolve
any disputes that might arise after his death. He instructed, “My
Will and direction expressly is, that all disputes (if unhappily any
should arise) shall be decided by three impartial and intelligent men,
known for their probity and good understanding; two to be chosen by
the disputants--each having the choice of one- and the third by those
two. Which three men thus chosen, shall, unfettered by Law, or legal
constructions, declare their sense of the Testators intention; and such
decision is, to all intents and purposes to be as binding on the Parties
as if it had been given in the Supreme Court of the United States.” |
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