California attorney/mediator Charles Parselle just published an interesting article entitled “The Satisfactions Of Litigation,” available here on Parselle reflects on why some parties are drawn, at least initially, to litigation over mediation. Especially for “first time” litigants (i.e., the vast majority of probate litigants), the lure of a trial can be very compelling, no matter how rational the arguments in favor of a mediated settlement agreement may be. Parselle summarizes the “satisfactions” offered by these contrasting methods of dispute resolution, all of which are especially applicable in the probate-litigation context:

In summary, litigation offers satisfactions that other forms of conflict resolution usually cannot match. These are: (1) vindication (2) empowerment (3) public hearing (4) legitimacy (5) justice. [B. Mayer, 2004]

Mediation does not offer, or is thought not to offer, these satisfactions. Successful mediators need to understand realize that the needs driving litigation are strongly felt, and seek to find some way to accommodate them. It is because the existing trial court system is so broken in many ways that disputants seek alternative means to satisfy their needs.

Yet mediation offers satisfactions that the litigation system cannot hope to offer. These are: (1) speed (2) choice of mediator (3) flexibility as to time and place (4) low cost (5) privacy and confidentiality (6) mutually acceptable results (7) control of outcome.

The reality may not turn out the way the process was imagined, but that imagining remains a powerful lure. For many litigants are first-time entrants who have never done it before; most of their education may have been in the illusory processes of movie or television courtroom drama. If they go through with a trial, they often find that the real thing is slow, technical, cumbersome, tedious, and turns out be emotionally disappointing.