Alternative Dispute Resolution (“ADR”) is a technique that can be used to facilitate the resolution of a dispute between disagreeing parties. ADR is particularly necessary given the impossibility of the court systems to try every case filed to verdict. While there are many forms of ADR, this article focuses solely on mediation. Mediation involves the use of a neutral third party (usually a retired judge or experienced attorney), a mediator (also called facilitator), to assist the disputing parties in resolving their conflict. Mediation allows each side to communicate their view of their case and enables the parties to gain a better understanding of their opponent’s views. Mediators then use specialized forms of communication and negotiation techniques in order to facilitate the resolution of the dispute. Mediators do not decide who is right or wrong—instead, mediators help the parties find a solution that will appease both parties and end their dispute.
Litigation can be expensive, time consuming, and emotionally draining. Mediation, on the other hand, is often cheaper, faster, and less stressful than a trial where the case is decided by a judge, jury, or arbitrator. Mediation has many benefits that make it an advantageous alternative to other types of dispute resolution, particularly, litigation through the courts. The main benefits are discussed below.
Litigation and court costs can add up quickly and be very expensive. Typically, the faster a case can be resolved, the less costly it will be. Mediation can be used to resolve disputes either before a threatened lawsuit is filed or in concert with litigation at any time prior to trial. During the course of litigation, attorney and court fees can leave your bank account devastated. Mediation is significantly more efficient than litigation and a more efficient settlement process can generate financial savings, even once a lawsuit has been filed. By mediating a dispute, all parties will be able to save time and expense in reaching a suitable resolution.
Mediation is confidential and private. (Cal. Evid. Code § 1119.) While litigation takes place in public sessions in a courtroom, mediation occurs in private. With only a few exceptions, everything said in mediation is confidential and cannot be used in court. This means that what you say during mediation cannot be revealed outside of the mediation proceedings or used later in a court of law. Confidentiality in mediation has such importance that the legal system cannot force a mediator to testify in court as to the content or progress of mediation.
Mediation is less adversarial than arbitration or litigation in that it is voluntary and allows people to resolve the dispute in a more relaxed manner. In mediation, the parties are assisted by a mediator to reach an agreement developed by the parties themselves, not one imposed by a judge or arbitrator. Mediators are able to take time to understand the concerns and desires of all parties before suggesting a solution and an agreement is reached only when all parties say “yes” to each other. The mediator helps to control the dialogue between the parties and, in turn, encourages the parties to work with one another and be flexible. This is particularly valuable when your dispute involves another party with whom you need to remain on good terms. Lawsuits can ruin relationships, but mediation may allow the parties to keep hostility to a minimum and encourages the opportunity for the parties to preserve their personal or business relationship.
While litigation is often uncertain, the goal of mediation is to compromise. Although this means that neither party will get exactly what they want, the plaintiff won’t walk away empty handed and all parties will save the time, expense, and frustration often incurred during litigation. In litigation, there is a greater chance that the outcome might be unfavorable to both parties because control lies with the judge or the jury. In mediation, the mediator works with the parties and helps to shape the final settlement, but the parties themselves control the outcome which helps both parties reach a satisfactory result. This is because mediation affords all parties with the chance to agree on a solution that works best for them. Typically, you will be more satisfied by having arrived at your own solution to the issues at hand as opposed to having a judge or jury make the decisions.
While mediation allows the parties to make the choices that result in an agreement, the mediated agreement is fully enforceable in a court of law. Agreements reached through mediation are more likely to be carried out than those imposed by a judge because both parties mutually agreed to the terms. Mediation allows the parties to be flexible and creative in their resolution, rather than be forced to abide by a decision imposed upon them. When parties are able to reach an agreement mutually, they are less likely to look for ways to violate the agreement. However, if mediation is unsuccessful or the agreement reached during mediation is not complied with, the parties still have the option to litigate their dispute.
It’s important to consider all of these factors when you’re deciding between litigation and mediation. While this article only discusses the benefits of Mediation, Madison Law, APC specializes in all methods of dispute resolution. If you're dealing with a dispute, please contact us and learn how we can help.