Six Top Reasons to Choose Mediation
By Katy Miller
In today's society, legal disputes can consume a company, a family, an individual, an employer, a governmental entity. They are costly, not only from a financial perspective, but also from personal and emotional perspectives. They are time consuming, and can be so distracting to management or to the individual that they impact one's ability to do much else. Mediation is an alternative to litigation, an alternative for achieving conflict resolution. It is a process in which an impartial and trained individual helps people to reach a resolution of a legal dispute voluntarily, without the continued cost of litigation. What are the advantages of mediation?
1. What types of cases are appropriate for mediation?
Every type of case is appropriate for mediation—almost. Employment cases, contract cases, regulatory disputes, business-to-business disputes, natural resources issues, tort litigation are all examples of cases or situations where mediation can be used effectively to resolve a dispute. While there will occasionally be that constitutional challenge or important public interest that must be adjudicated, those situations are the exception, not the rule. In fact, when important public interests are at stake, consideration should be given to the efficacy of using mediation to reach long-term solutions that a court or tribunal may never reach. Practical solutions, involving multi-party disputes, are often far easier to craft in mediation than litigation.
2. An objective listener.
The mediator is an independent third party who will really listen to the issues that the parties believe are important. In litigation, very often the legal technicalities, the arguments between counsel, and the procedural entanglements hide the real issues. In mediation, a skilled mediator will listen to issues described by the parties and help direct them to an agreeable resolution. Particularly where the opposing parties or sides to a dispute are in an on-going relationship, such as employment, the process can be very valuable in resolving conflict so that they can work productively in the future.
3. Reducing cost to the state and other parties.
Consider the cost of conflict to the State in terms of financial cost and time invested in the conflict. The financial cost of the mediation itself, including the mediator's fees, is far less than the cost of preparing a case for trial or hearing. Even if the mediation is not scheduled until after the close of discovery or investigation, during which substantial costs may have been incurred, preparing for and participating in mediation is far less expensive than preparing for and participating in a trial or hearing. Often more important is the cost of the time of management and attorneys in preparing a case for a trial or hearing. Although management and other witnesses will be involved in an investigation to some extent, the amount of time expended by management during the course of a mediation is much less than in preparing for a hearing or trial. Of course, the earlier the mediation is set in the process, the better.
4. The parties have flexibility.
The parties have significantly increased flexibility in mediation. Contrary to the court system, the parties select the mediator. Of course selecting the right mediator is a key component of the process. Consider whether you would want someone with the substantive knowledge of the subject matter to help the parties reach a consensus. Similarly, whereas the court system is very structured with many rules to follow, in mediation the parties can design the mediation process to be used. In some cases, it will be best to separate the parties for most if not all of the session. In others, the mediator will facilitate communication directly between the parties. In addition, sometimes mediators use a facilitative style, working the parties toward a consensus by focusing on the needs of the parties, not the legal issues in the case. Sometimes they use an evaluative style, evaluating the likely outcome of the factual and legal issues if tried in court or in a hearing. Different cases warrant different styles. In mediation, the parties choose the style they think will work best for their case.
5. Because mediation is voluntary, parties have a high degree of motivation to succeed.
Mediation is voluntary. No one can force the parties to accept an agreement. The mediator does not make any rulings or decisions. The parties are free to craft the resolution, whether it would otherwise be available in court or not, that will work best for them. Creativity in the outcome is highly valued and the resolution is reached only if both parties agree that it will work.
6. Speedy and risk–free.
Mediation is much quicker than waiting for a trial or hearing, and an appeal, of a legal dispute. The parties will eliminate the fear, anxiety and risk of going through the legal system, and will be able quickly to put the dispute behind them with a satisfactory solution that they have created. Most importantly in on-going relationships, the parties can quickly move forward with a productive relationship instead of dwelling for an often lengthy period of time on the negative issues between them.
