Mediation can offer significant advantages over litigation, in appropriately screened cases. Some benefits include confidentiality, keeping the parties in control of how they manage their own conflict, flexibility in designing responses to the conflict, speed of resolution, and low degree of risk from trying. Cost is another factor, but it should not be the determining factor in the decision whether or not to attempt mediation. Mediation is not just a cheap alternative. To the contrary, an unjust solution can be very expensive in the long run. Thus, if one party is abusing the mediation process, mediation will be terminated and the parties referred to a process better designed to protect parties when both are not committed to principles of fairness. In cases where everyone wants to find a solution that is fair, however, mediation can be an excellent investment.
Some reasons include:
- Mediators are highly skilled and professionally trained specifically in the art of helping parties resolve disputes. You think you have tried everything to resolve your conflict? Think again! Mediators have skills that you don’t have: professional training in things like techniques to enhance communication, how to address and defuse anger, how to help parties get to real issues, and helping people reach genuinely voluntary agreements. You pay for special expertise in resolving conflict.
- Mediators de-escalate conflict and make it go away faster. You pay for fewer hours.
- Mediation is effective. It makes disputes go away for good. When parties have entered into an agreement freely and voluntarily, there is a much lower likelihood that they will fail to comply with the agreement or that later court enforcement will be necessary. You pay for fewer enforcement actions.
- Mediation costs less per person. Though each party is expected to take full responsibility for the fee if necessary, this practical arrangement generally means that parties share the cost. Thus, you pay less per hour.
For most people most of the time, mediation is likely to result in a conflict resolution product that individuals are happier with, have fewer regrets over, and in a way that is cost effective.
To learn more specific reasons about why mediation is better for most people than litigation, click HERE. If budget truly is an obstacle, please discuss this. We’re mediators; we know all about helping parties find creative options to create win-win solutions for challenging issues.
For an article about the difference in perspective between mediation and litigation, see “Legal vs. Mediation Narratives and Why They Matter,” by Victoria Pynchon (published November 22, 2009), found at http://www.negotiationlawblog.com/2009/11/articles/conflict-resolution/legal-vs-mediation-narratives-and-why-they-matter/ Fundamentally, whereas the litigation perspective is “you vs. me”, the mediation perspective is one of “you and me (together) vs. a problem”. Rather than struggling against each other, as in litigation, parties to a mediation struggle together, collaboratively, to solve a problem. The mediator acts more or less like a midwife in this process, empowering and enabling the parties to work together to create solutions.
The mediation narrative is that conflict presents an opportunity for both parties to work together to address a problem. For example, in the case of the Three Little Pigs and the Big Bad Wolf, the mediator would not see the wolf as evil who must be killed. Instead, the mediator would see the wolf as being a party who had a need to eat. If the wolf can be persuaded and helped to find a way to eat without killing the pigs, then the whole problem goes away. The challenge of how the wolf can get food is a difficult one, but if the pigs can help the wolf find alternate ways of finding food, then they can all coexist. The job of the mediator is to help parties find positive ways of communicating and resolving conflict, hopefully in ways that provide the parties with what they need for wholeness, with as little damage to each other as possible.
For an article that may help you prepare for mediation see Seven Steps to Effective Mediation by Diana Santa Maria and Marc A. Gregg (republished by Wrightslaw, originally appeared in the June, 1997, issue of Journal of the Association of Trial Lawyers of America).
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