Law and Disorder

We can work it out

Mediation, not litigation

By A.J. Wagner

Two events caused a collision in my mind last week. Now, you get to suffer the consequences of the thinking that transpired in their wreckage.

The first event was an article in the New York Times about tort reform, a favorite topic of conservatives and the U.S. Chamber of Commerce. Tort reform has been proposed because of the notion that our justice system is flawed. Advocates for reform believe that too many companies get sued for faulty products and doctors get sued too often for malpractice. The reform movement presumes an out-of-control system led by unscrupulous lawyers, incompetent judges and runaway juries. Though I saw fewer than handful of bad lawsuits in the ten years I was a judge, none of which saw an award of damages, presumptions against the legal system continue to be built on the tales of rare improprieties and urban myth.

The Times article told the story of Blitz USA, a now bankrupt company that made gasoline cans. The company had dozens of lawsuits pending at the time of its bankruptcy. The company’s woes came from claims by injured consumers burned by flashback when gasoline vapors outside the cans ignited and followed the vapor trail back into the container. The cans could have been made much safer with the installation of inexpensive “flame arrester” shields at the mouth of the containers to prevent the explosions. Lawsuits ensued.

The company won some of the suits, but some suits were won by consumers. That cost the company millions. The company claimed $30 million in legal fees and $30 million in payments by its insurance company.

This article collided in my mind with an invitation to the 25th anniversary celebration for the Dayton Mediation Center. For 25 years the Center has been mediating neighborhood disputes, employer/employee disputes, domestic matters, small claims, evictions and much more.

I am a member of the Mediation Center advisory board and a volunteer mediator. I have seen, first hand, the good effect of parties working out their differences without going to court.

I also experienced the benefits of mediation as a judge. Lawsuits in Montgomery County are often referred for mediation. In fact, I never scheduled a trial without first asking if the parties would try mediation.

So, I am thinking about the situation of Blitz USA and tort reform, and I’m thinking about mediation. How much money would a company like Blitz save if, before heading to court, they headed to the Mediation Center? This wasn’t the first time I had such a thought, but these circumstances placed the question before me again, and now I place it before you.

The $30 million paid by Blitz in legal fees covered trial preparation, depositions, legal document discovery and preparation. I’m not suggesting that Blitz forgo lawyering up, but I am suggesting much of that work could be avoided, and thus the cost, with mediation.

Add to that the potential savings on settlement. As noted above, Blitz claims $30 million paid out on claims. In one case, Blitz had to pay $4 million to the father of a 2-year-old girl killed when a Blitz can exploded near her. Mediation could well have resulted in a smaller award.

When people sue they generally are looking for justice as they see justice. Most people do not want to be considered greedy, but they want a company to pay for their injury with the hope of some economic recovery that forces the company to avoid their bad behavior in the future. The battle set up in court tends to exacerbate feelings of enmity on both sides as each side postures and enters into battle.

Mediation allows discussion, sometimes loud discussion, which tends to clear the air. The consumer gets to express the pain endured by the injury and the company’s executive gets to confront the stupidity of the consumer who poured gasoline onto an open flame. Then the executive might describe what procedures they have put into place to void future accidents while the consumer admits some carelessness. Then the parties get to explore what it will take to make the situation right with each other. More than 70 percent of the time cases will be resolved with less time and money than a lawsuit would require.

Every case is different, but my point is that Dayton and Montgomery County are ahead of tort reform. They offer a chance to avoid court and to resolve cases less expensively than full litigation. Additionally, cases are resolved, in good mediation, to the satisfaction of everyone without one side feeling they were cheated by the system.

No unscrupulous lawyers, no incompetent judges and no runaway juries – Happy 25th Anniversary Dayton Mediation Center! Keep up the good work!

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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