When to use a lawyer and when a mediator?

If you're facing a dispute, the first thing to do is run to a lawyer, right? As a 10-year practising lawyer, I'd tell you sometimes that is the case, but not necessarily so...

Here are my reasons:

1. Litigation is at the end of the day merely a matter to resolve disputes. The complex rules of law help identify the facts and issues in dispute, narrow them down, to be decided according to precedent. As parties to the dispute, you would easily be able to identify the facts and issues in dispute and to narrow them down even without the process of law.

2. Once you have narrowed down the facts and issues in dispute, then it is a matter of talking about each and every disputed fact and issue until some kind of acceptable understanding is reached. As non-lawyers, your discussion need not be confined to the limited remedies the law can provide. For example, the law provides damages for defamation. As a non-lawyer, you can explore other forms of settlement, eg by an apology dinner, by an admission in a closed-door meeting with crucial parties, etc. These are remedies which a Court of law would not be able to order.

3. Having discussed the facts and issues in dispute, you then simply put your understanding down in writing. Once you have done that, drawing up a proper settlement agreement would be just a matter of paperwork which can be done for a reasonable price.

4. If you cannot agree with the other party about any issue, this is rarely about the legal position, and it is almost always about personalities, emotions or underlying interests. If you cannot agree, you don't need a lawyer (who would perpetuate the disagreement) but a mediator (who would seek to reconcile underlying interests and explore potential settlement options).

5. There is little chance of a continuing relationship with the other party once you go into the courtroom. The legal system is adversarial in nature, which means it is a zero sum game. One party's win must necessarily mean another party's loss. If a continuing relationship (even if merely to fulfill settlement terms) is at all important to you, the court is not your best bet.

6. In fact, many lawyers have realised the futility of the courtroom, and have left behind their robes in exchange for a more conciliatory or collaborative dispute resolution process. If the lawyers who are stakeholders of the system are disillusioned over its efficacy to resolve disputes, why would you want to step into this minefield except as a last resort?

Having said all that, there are times when a Court is necessary and would prove to be the most effective mechanism. This usually applies when you require an injunction, are dealing with clearly unreasonable parties, or require enforcement capabilities beyond what can be offered by alternative processes.

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2008 marks my 10th year in legal practice. Thank you for your support.

I look forward to continue supporting you with legally sound, trusted solutions, for many years to come.

Drop me an email at khenghoe@mycounsel.com.my.