What are the Advantages of Mediation over Litigation?
Mediation has become more and more common as a tool in divorce cases, but it is becoming more popular in other areas as well, including business or partnership disputes.
What is Mediation?
Mediation is known as a form of alternative dispute resolution, meaning it is a way for the parties to resolve their differences outside of the courtroom.
In mediation, the parties agree on one or more mediators-typically retired judges, attorneys, or other experts-to help them resolve their dispute. The mediator does not advocate or argue for any one side's position. Instead, the mediator's role is to act as a neutral party and facilitate a resolution that is agreeable to all parties involved. The mediator listens to both sides, tries to seek common ground, and offers suggestions to help the parties make compromises to resolve their disputes.
Sometimes the parties are represented by attorneys at the mediation, sometimes not. Any discussions held during a mediation are confidential, and statements made during a mediation cannot be used against either party in a lawsuit later if the mediation is unsuccessful.
If the parties can come to an agreement during mediation, the parties, in conjunction with the mediator, then prepare a settlement agreement outlining how they agreed to resolve their dispute. It's outlines all parties obligations and the timing for those obligations with regard to the resolution reached.
What Are the Advantages of Mediation?
Mediation is usually much less costly than litigation is, and it often results in a much quicker resolution to the dispute. This, in turn, means less stress for all involved.
Resorting to litigation requires that each side hire their own lawyer, and the courts have specific rules and procedures that must be followed before the case gets before a judge or jury, often resulting in long delays and significant legal fees. Many lawsuits are not resolved for years after they are initiated.
The mediation process is much less formal than a lawsuit, with more participation and discussion by the parties involved. There are fewer procedures and requirements, and more flexibility. Mediations are less intimidating too, and often take place in a conference room or other location agreeable to the parties.
In most cases, using mediation can help resolve disputes in a matter of weeks. Mediation scheduling is more flexible and accommodating than court scheduling, and often mediation sessions can be held outside of regular business hours for the convenience of the parties, so that the parties don't have to miss work to attend mediation sessions.
The long and drawn-out litigation process pits the parties against one another with the lawyers taking adversarial positions based solely on what has already occurred. Mediation is a more collaborative process than litigation. Often a mediator can suggest compromises or solutions that would not be available in court, based on the interests and concerns of the parties, including their future business or personal relationship. As a result, mediation can help save relationships that might be destroyed in litigation.
The parties also have more control in a mediation than they would in a courtroom, where the litigants do not get to choose the judge and the decision of the judge or the jury is final. In a mediation, both sides agree on the mediator to hear their case, and each side can present the issues that are most important to them. In mediation, the parties can also choose whether to accept or reject the suggestions or recommendations made by the mediator before coming to a final agreement. And if no agreement can be reached, the parties can still opt for either arbitration or litigation.
Additionally, in a lawsuit, personal, business and financial information may become publicly available as part of a lawsuit's records, but because mediation is confidential, any information revealed during a mediation is not made public.
Lawyers and Mediation
While mediators do not have to be lawyers, it is often wise to choose a lawyer who is familiar with the area of law involved in your dispute to act as a mediator.
In some mediations, the parties hire lawyers who accompany them to the mediation and participate, offering additional suggestions. In other cases, the parties meet with the mediator without a lawyer.
Even if a lawyer is not present during the mediation, if the mediation is successful, it is a good idea to have a lawyer review the mediation or settlement agreement before signing it.
If you think mediation might be a better solution to your legal dispute than litigation, allow the perfect mediator and attorney to come to you by quickly posting your legal issue on our site.
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