Why Mediation is Preferable to Litigation or Lingering Disputes

A wise man once said, “What’s worth more to you— your time or your money?”

That question should be running through your head as you consider litigation. You can spend a lot of time and money going “all in” trying to be right. Or you can quickly mediate your dispute and settle somewhere in the middle.

What Is Mediation?

Mediation is simply a way to settle a dispute without the time and expense of the court process. Two sides in conflict agree to meet with a neutral third-party who facilitates the reaching of a voluntary agreement. Both parties must agree to be transparent during the mediation process and disclose all relevant information and documentation. 

A mediator can help the two sides restate and clarify issues, look at all of the options, and come to a workable solution. Yes, it’s a compromise, but it can be a much more successful outcome than spending years in discovery and court only to lose the case completely. Or you may end up with the same solution, that took several years and thousands of dollars to reach.

Mediation can be a great option for a variety of different kinds of disputes, including disputes in divorce, business agreements, employment, and property issues, just to name a few.

What are the Stages of a Mediation?

Mediation is a lot more informal than court, but it’s still fairly structured, and there are rules that must be followed. A typical mediation process may include some or all of the following steps:

Planning and Preparation. Before the mediation process starts, the parties may need to complete intake forms and gather certain documents needed for the mediation sessions. The mediator also helps the parties decide other logistics, like where they should meet and who will attend. Many retired judges are now serving as mediators.

An Introduction by the Mediator. With the parties gathered together in the same room, the mediator will introduce the parties, review the mediation process, and set some ground rules for the mediation session and the participants. In addition, the mediator will present his or her objective for the mediation process. This of course is generally to assist the sides in coming to a negotiated agreement on the issue in dispute.

The Sides’ Opening Statement. After the mediator makes his or her introduction, each side has the chance to state their view of the dispute (without any interruptions or objections from the other side). While discussing the dispute, a participant may also express their feelings and frustrations. It’s good to get this out in the open, so both sides can hear how the other feels.

Joint Discussions. After each side gives an opening statement, the mediator and the sides can ask questions to elicit a better understanding of each party’s needs and concerns. It’s not uncommon for the participants in a mediation to be antagonistic. As a result, the disputing sides frequently have trouble listening to each other. The mediator will engage in active listening, where he or she will repeat what they have heard and request clarification when necessary. The mediator can also rephrase a comment so it’s better received. For example, a mediator might listen to a side and then say, “If I’m hearing you correctly, your biggest concern is XYZ.” This restatement might present the issue in a more acceptable light for the other party.

Impasse. It’s not unusual for the two sides to get stuck. You might hear it termed as the “negotiations have broken down.” The mediator tries to restart the discussions by determining what the roadblocks are for each side. The mediator will also try to understand why the opposing parties are so far apart.

Private Caucuses for Each Side. If the temperature of the discussions runs high in a joint session, the mediator might call a time out and separate the two sides. They will meet in separate rooms for private meetings or what are sometimes called “caucuses.” The mediator may tell each side that the information they share in a caucus is confidential because this can encourage the sides to provide additional information about their issues and concerns. A caucus will never occur without the knowledge and consent of both parties. 

Negotiation. At this stage in the mediation process, the mediator may gather the information and start formulating ideas and proposals that satisfy each side basic concerns or needs. An experienced mediator will be able to facilitate the negotiation with all parties in the same room. But in some heated situations, he or she may go back and forth between the sides in their respective rooms with suggestions, offers, and responses.

Closure. If and when the parties reach an agreement, the mediator will prepare a written agreement that memorializes the terms and the obligations of each of the sides. All of the terms and conditions are fully explained to the parties. However, if the parties fail to reach an agreement, the mediator will summarize the status of the mediation process in the event that the parties wish to re-start negotiations in the future.

How Long Does a Mediation Last?

Depending on the complexity of the issues, a mediation might go on for hours, or even days, weeks, or months. The individual mediation sessions typically last from one to two hours, as more time than that tends to drain the energy and impeded clear decision-making abilities. A follow up session is usually scheduled as soon as possible, in order to maintain the momentum. 

What Are the Advantages of the Mediation Process?

  • Control. The parties have much more control, and the responsibility and authority for reaching an agreement is vested with the parties, not the judge or a jury.
  • The Process is Solution-Driven. The dispute is seen as a problem to be solved and is less adversarial that a trial. 
  • Feelings are Taken in Consideration. Mediation acknowledges the parties’ feelings. A mediation is more personal.
  • More Satisfaction. Participants in mediation are usually very satisfied—much more so than those who go to court. 
  • Less Formality. Mediation is much less intimidating and nerve-racking than preparing for depositions and a trial. The process is more fluid, and there are no strict rules of judicial procedure.
  • A Quicker Resolution. A court case can take years to get to trial. But a mediated agreement may be fashioned in just a few hours.
  • Less Expense. Litigation is not only time-consuming, but also expensive. And the costs may exceed benefits. Again, you may finally be right, but it’s taken two years and cost you tens of thousands of dollars. 
  • Confidentiality. Mediation offers the parties more privacy. Most court proceedings are matters of public record, but the majority of private mediations are just that: private and confidential.

Takeaway

Mediation considers the underlying causes of the problem—along with the parties’ feelings— and tries to create positive solutions that appeal to both sides. The dispute can be resolved quickly, and individuals and businesses can move forward.

Francine E. Love
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Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law