What is Mediation?
Mediation is becoming an integral part of both the litigation and pre-litigation process that have evolved within our system of American jurisprudence. At its very basic level it is a confidential process where the parties, with or without counsel and with the assistance of a trained neutral, are given the opportunity to:
• discuss the issues in play
• delve into the dynamics underlying the dispute
• explore areas of disagreement,
• clear up any misunderstandings that exist, and
• work towards an agreement.
The result is a client centered and self-driven agreement
that both parties can accept
An effective mediation occurs in a safe, neutral environment where the parties in active concert with the mediator can utilize their own skills and creativity in fashioning an agreement that is acceptable to all. In those instances where the relationship of the parties is ongoing, the process can also provide a forum to effectively deal with issues that may arise in the future.
Why Mediate?
Litigation, the traditional form of dispute resolution, is burdened with significant uncertainty, delay and costs, some of which are direct and quantifiable, and others which are indirect and oftentimes difficult to measure, but nonetheless significant. What follows are some advantages of mediating rather than litigating:
• Minimize attorney fees and other costs, including those of experts
• Eliminate indirect costs to the disputants such as loss of business and personal productivity associated with litigation
• Allow business to conduct business as usual; increase the ability to make day to day as well as strategic decisions without the cloud of litigation over its head
• Reduce resentment, anger, stress and intransigence normally associated with the seemingly endless litigation process
• Provide a convenient forum for each disputant to emotionally vent, thus providing an avenue to move forward towards a resolution
• Create avenues of resolution without the burden of having to factor attorney fees and costs into the settlement equation, which can be substantial
• Avoid the inordinate delay and uncertainly associated with trials and appeals
• Avoid the risk of a poor outcome and significant financial loss
• promote closure and finality
Other Benefits of Mediation
In addition to the positive attributes associated with mediation as listed above, there are others that may appear less obvious, but can be just as important:
• Where the parties will continue to interact with one another on an ongoing or periodic basis, the process can foster cooperation, understanding, and increased knowledge that can lead to a better relationship.
• The process of mediation is more fluid and flexible giving the parties the freedom to address and agree upon issues that would not be possible in the traditional litigation or arbitration setting.
• Mediation is confidential unless otherwise agreed. Scrutiny by the public, business associates, curious family members, and the press is avoided.
• The process allows the parties to have more control over the dynamics of building consensus and the ultimate agreement. Perceived arbitrary and less than comprehensive findings and results by judges and juries are avoided.
• By virtue of the fact that the parties themselves are instrumental in coming to an agreement, the mediation process is the most effective and fairest form of dispute resolution.
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