Why Mediation?

April 10th, 2010   •   35,178 Comments   

Discourage litigation.  Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses and waste of time.

Abraham Lincoln

Traditional dispute resolutions processes are failing to meet today’s needs.  Courts are overcrowded, disputants are angry, litigation costs are skyrocketing, relationships are being destroyed, the complexity of commercial litigation seems endless, and injured parties refuse to settle.  Disputants are frustrated with the litigation process and the procedural issues, and posturing for the best negotiation position. They are angry with protracted negotiations, long court delays and discovery processes that consume huge chunks of time and legal budgets.

Disputants want their conflicts resolved quickly and fairly.  Instead they get protracted, intrusive and expensive litigation which they do not understand and cannot control. To meet these demands, dispute resolution professionals are rediscovering and developing resolution strategies that provide ways to resolve disputes with creative dispute resolution processes.

Reduced Legal Costs

The traditional pre-trial settlement model places settlement “on the courthouse steps” or in a judicially mandated settlement conference within weeks or days of trial.  Unfortunately this is after the parties have already expended considerable sums on discovery. The parties should ask themselves, “If we’re going to settle anyway, why not make it earlier rather than later?” Any number of creative processes can make early settlement more likely.

As much as fifty percent of the cost of litigation can be saved through creative dispute resolution.  A recent study conducted by Pepperdine Law School found that two-thirds of non-litigative process users were able to save money by using such processes.

Reduced Time Spent on Litigation

Dispute resolution processes involve summary or abbreviated implementation. A summary trial or a mini-trial often takes a day or less. Virtually all innovative dispute resolution processes take less time than trial. Because non-litigative processes can operate outside the court system, a dispute need not wait its turn on an overcrowded court docket. The presence  of a contractual dispute resolution procedure may also provide impetus to resolve a dispute without even using the process.  Even if a dispute is not fully resolved prior to litigation, the process is often helpful in narrowing the issues for ultimate litigation.

Control Over Who Decides the Dispute

Disputants can choose who their mediator will be, and thereby retain the power of decision-making.

Increased Party Involvement

The constraints of typical courtroom procedures often reduce meaningful problem-solving communication to a minimum. Creative processes, on the other hand, allow for more informal communication, reducing posturing and the exploitation of procedural rules.  Innovation can short-circuit the escalation of hostilities often associated with formal litigation.

Potential for Creative Problem-Solving

Courts can provide only a limited range of remedies, usually involving money damages or narrow injunctive relief. Often the parties’ interests lie in other areas, such as recognition or in an apology. In the creative process, the parties can explore these options.

Confidentiality

Almost all litigation is public. Parties prefer the privacy of a non-litigated solution, for example where reputation or trade secrets are involved.

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