Why Choose Mediation?
Mediation Saves Time.
Trying to resolve a conflict through litigation is an extremely slow process that can take years. Trial dates are set far in the future and there is a lengthy period of pre-trial discovery before anything happens in court. Backlogs and delays are common. The parties have no ability to speed things along and must surrender entirely to the process. Trials themselves are long drawn-out affairs because of courtroom protocols and rules of evidence. Once that process concludes, litigants wait for a ruling and in some cases sit around while appeals are decided. The judicial system is not only a slow grind, but it also requires a heavy time-commitment from the parties, as they are called upon to answer discovery requests and prepare testimony. When people use mediation, their disputes are resolved in a fraction of the time that it would take to go to trial or sit through an arbitration proceeding. It is not unusual for cases to be completely settled in a short mediation session, lasting a day or less.
Mediation Saves Money.
Mediation costs a small fraction of a full-blown lawsuit. Parties save money on legal bills, pre-trial discovery expenses, expert witness fees and court costs. Mediation is also less expensive than arbitration, which resembles a mini-trial and typically involves substantial attorney involvement, payments to an arbitral panel and pre-hearing discovery costs. Mediation does not require the parties to use lawyers, but even when they do, the legal fees are much lower because the mediation process is concluded so quickly.
Mediation Reduces Anxiety.
The adversarial process is extremely stressful for most people. The outcome is uncertain, the participants are aggressive toward one another, expenses run high and the time-commitment is substantial. Mediation is a great alternative to fighting in court or battling through arbitration because it resolves disputes quickly, at a low cost, in a relaxed environment, and is focused on collaboration and settlement.
Mediation is Confidential and Private.
The law provide for strict confidentiality rules in mediation. Nothing discussed in the session is admissible in a court proceeding if the parties are unable to reach an agreement and there is subsequent litigation. In addition, the parties can avoid public disclosure of private matters if they use mediation. Court records are easily-accessible via the internet today, so details of a dispute handled through the judicial system are available to almost anyone. “Dirty laundry” aired in litigation causes embarrassment for the parties and damage to reputations. Mediation, on the other hand, takes places behind closed doors, without a court reporter or published transcript, so information about the conflict remains private.
Mediation is Relaxed and Convenient.
Mediation sessions are informal. There are no fixed procedures like those found in a trial or arbitration proceeding, no rules of evidence, no rigid protocols or strict rules to follow. They are held in a relaxed setting, such as an office or conference room. In addition, the parties schedule the session for a time that is convenient to them, instead of having a date assigned to them by a judge based on a court calendar.
Mediation Lets the Parties Control Their Own Future.
In litigation and arbitration, the parties hand over all decision making authority to a third-party, who then determines the outcome of their case. In mediation, the parties retain complete control of the result. Each side provides ideas for resolution and has an equal say in the outcome. Neither side can force the other to agree to anything in mediation and the mediator does not make rulings or have any authority to impose a settlement.
Mediation Produces Lasting Agreements.
Mediated agreements are said to have a high compliance rate, or to “last longer,” meaning that people who reach a settlement in mediation are likely to follow through with the terms of their deal. This is because the parties collaborate on the solution and have actual ownership of the result, which they adopt together. In the adversarial process, a judge or arbitrator orders the parties to do certain things, so the “loser,” who is invariably resentful, often finds excuses to circumvent the ruling. In addition, because parties in mediation are directly involved in crafting their own settlement, they typically only agree to terms that they are capable of carrying out. When a court or arbitral panel issues an order, no thought is given to whether compliance is possible, and parties are often incapable of meeting the obligations imposed by the decisionmaker.
Mediation Preserves Relationships.
Mediation is the best alternative when parties have a relationship that they want to preserve following resolution of the conflict. In the adversarial process, each side tries to discredit the other in order to convince the judge or arbitrator to rule in their favor. This is accomplished through a series of claims and counterclaims by the lawyers and involves accusations and attacks by the parties. Often times, both sides are met with extreme hostility and aggression. In addition, because the adversarial process typically crowns a winner, it produces at least one unhappy party who feels resentment and animosity toward the other. All of this basically guarantees that the parties will be on very poor terms, if not enemies, after the case ends. Mediation works differently. The parties sit in a room together and, with the help of a facilitator, listen to one another’s perspective on the dispute, discuss their needs and interests, brainstorm settlement ideas and collaborate on a solution. Because the focus of mediation is reaching an agreement for the future, rather than making accusations about the past, the anger and hostility that define litigation and arbitration are less pronounced and parties can often resume a relationship after their session in a way that’s simply not possible following a highly-charged adversarial proceeding.
Mediation Allows for Resolutions Beyond “Win-Lose”.
Trials and arbitrations are “win-lose” affairs. Judges and arbitrators have a mandate to determine who is at fault in a dispute and to assess damages. They are capable only of assigning blame based on past events and then ordering remedial action. They are not equipped to look beyond the conflict by inquiring about anyone’s interests or asking how those interests can be met. Mediation, on the other hand, is not concerned with crowning a winner and a loser but with producing an agreement that addresses the parties’ actual needs and concerns. Those involved in the conflict communicate about what really matters to them, brainstorm solutions and then craft a resolution that meets their needs. Because every dispute is unique, those involved are not well-served by submitting to an adversarial process that can only tell them whether they’ve won or lost and by how much. Mediation delivers more by helping the parties find options for mutual gain and allowing them to develop creative solutions to their problem. The difference between adversarial proceedings and mediation is like the difference between buying a coat off the rack and having one made by a tailor.
Mediation Offers More Than Horse-Trading.
Non-mediated negotiations tend to be disappointing to everyone involved. They generally produce settlements through a process of “horse-trading,” sometimes known as “positional bargaining.” This involves a high opening demand on one side, a low opening offer on the other, followed by a series of sequential movements up or down that result in a splitting-the-difference compromise after a lengthy back and forth. Mediation works differently by encouraging what is known as “interest-based negotiation.” The parties focus not on demands and offers but on their needs and interests, which they articulate to one another with the help of the mediator. This allows everyone to know what’s important to everyone else and gives the parties permission to create a settlement based on needs and concerns rather than on positions and demands. For this reason, agreements reached in mediation tend to be richer and more satisfying to the parties than a typical compromise-based deal reached outside of mediation.
Mediation Preserves Options.
The vast majority of disputes in mediation are resolved to the satisfaction of the parties. If for some reason a dispute is not settled, however, the parties are still free to go to trial or try arbitration. Mediation is a non-binding process and does not close any other doors for resolving the conflict.