Why Use Mediation?
Litigation is a risky business for attorneys and their clients. The road to trial is costly, lengthy, and unpredictable. Even a seasoned and expertly prepared lawyer cannot foresee the total cost or outcome of a trial and post-trial appeals. For defendants, litigation is often an impractical method of resolving legal disputes because the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs exceed the amount in dispute. Defendants increasingly find that they are spending more to litigate than the cost to settle the matter. For plaintiff’s, depositions and the discovery process can be even more stressful than the events that prompted the litigation. Expecting a jury’s verdict to make them whole, plaintiffs are in a waiting game that often puts their lives on hold with no guarantee of success. Inevitably, litigation carries an emotional toll on all parties by distracting them from having productive work and home lives.
In contrast, mediation offers certainty and a controlled outcome. Mediation is a completely voluntary process for resolving disputes outside of a courtroom. In mediation, the parties determine when and how their dispute resolves. Once a dispute goes to trial the outcome is in the hands of strangers, either a judge or jury. Mediation eliminates the risk of litigation and gives all parties relief from further legal fees and unpredictable results.
A mediator is a neutral person who assists the parties in negotiation to reach a mutually satisfactory settlement. During mediation, the mediator discusses the dispute with all parties. The mediation process is entirely confidential, voluntary and non-binding. The mediator has no power to force the parties to accept a settlement. Instead, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement and helping parties overcome them. If the parties do not reach a settlement during mediation, none of the mediation process is admissible as evidence in court. As an added bonus, mediation offers an opportunity to evaluate the strengths and weaknesses of each parties’ facts and legal theories to gain a realistic sense of what they likely can or cannot prove in court.
According to the American Arbitration Association, over 85% of all mediations result in a settlement. Mediation is different than the parties’ attorneys negotiating directly with one another. Attorneys in litigation are sometimes more interested in posturing and hard bargaining than in resolving disputes. In contrast, a mediator's job is to keep the parties focused on exploring fruitful avenues to settlement and resolution of the dispute.