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Mediation as an Effective Alternative to Litigation
Mediation is a method of Alternate Dispute Resolution (ADR) in addition to Arbitration, Negotiation and Conciliation. Mediation is a negotiation facilitated by a neutral third party known as the mediator[1] but unlike arbitration, mediation does not give the mediator the power to make a decision in order to settle the dispute. Mediation is a voluntary process, most of the time, and it requires consent of the parties, a term in a contractual agreement or mandate by a court. The process is different from litigation because parties have facilitated conversations and make compromises in order to resolve the dispute on their own rather than having a judge decide who “wins” and who “loses.” Furthermore, the mediator supervises exchange of information and bargaining between the parties and can even suggest creative solutions to help the parties find common ground and work past unrealistic expectations.
Almost all non-criminal cases and even some non-violent criminal cases can be mediated and successfully resolved. Most commonly mediation involves cases of divorce, custody, labor conflicts, management issues between partners and disagreements between neighbors as these situations do not merit a lawsuit and can be resolved simply by a conversation[2]. The reason why these matters do not make it to court is because of the lengthy and complicated process that litigation requires. Most matters that are presented before the court are filed years before that and the judgement usually comes out years after the suit is heard because of the sheer number of lawsuits being filed every day especially with the increase in partnerships, entrepreneurships and relationships of a contractual nature. Moreover, parties will have to hire advocates, pay for litigation costs, pay the court fees, and pay for appeals or further action if the decision is not favorable to them.
With mediation, on the other hand, parties are assured confidentiality and promised that anything said during the process will not be used in court if they decide to file a lawsuit. Mediation also costs less than a lawsuit as it does not require court fees or an attorney. While lawsuits may take years to be decided, mediation may take a few hours or a few sessions at the most depending on how well the parties communicate with each other. With this communication between parties, they become the judge and they decide the terms of the resolution. Therefore, with mediation, parties are assured confidentiality, lower costs, speedy justice, decision making power and open communication not hindered by attorneys as compared to the long and complicated litigation process.[3]
[1] FindLaw, What is Mediation?, FindLaw, (Jun. 20, 2016, 7:35 PM), https://adr.findlaw.com/mediation/what-is-mediation-.html.
[2] Adrienne Krikorian, Litigate or Mediate? Mediation as an alternative to Lawsuits, MediateIndia, (Jan. 25, 2002, 3:44 PM), https://www.mediate.com/articles/krikorian.cfm.
[3] FindLaw, Mediation Cases: What cases are eligible for mediation?, FindLaw, (Jun. 20, 2016, 7:35 PM), https://adr.findlaw.com/mediation/mediation-cases-what-cases-are-eligible-for-mediation.html.
- Mediation
- Cost-effective
- Conflict Resolution
