Mediation as an alternative to litigation

One of the alternatives to litigation is mediation. Mediation attempts to settle a case without going to trial. The plaintiff, defendant, attorneys, and a neutral third party called a mediator all talk about the case to see if they can find a solution. The mediator’s job is not to make a judgment on a case as a judge and jury or the arbitrator in arbitration would.

While the mediator will look at documents, listen to what both parties say, and educate themselves on the case, they are there to facilitate a conversation about the most agreeable option for both parties rather than make a legally-binding decision.

If you're involved in a legal issue that you would prefer to resolve outside of a courtroom, you could use mediation. During mediation, two people who are involved in a legal dispute will meet and attempt to settle a disagreement with the help of a mediator, which is a neutral third party.

THE ADVANTAGES OF MEDIATION CASES OVER TRADITIONAL LAWSUITS

Mediation cases have many significant advantages over traditional lawsuits, including the following:

Quicker: Mediation typically only takes days or weeks (or in very complex cases possibly months), whereas lawsuits typically take months or years. When parties want to get on with their lives, mediation allows a more reasonable timetable for resolving a dispute.

Less Expensive: Mediation is vastly less expensive than a typical lawsuit. Employing a mediator costs significantly less than employing a lawyer, and combined with the much quicker turnaround, you'll be paying less money over a shorter period of time. In addition, for certain types of disputes, many non-profits offer mediation services for free or at a nominal rate.

Less Formal: The informality of mediation allows the parties to be more engaged than they would be in a court-driven process with an abundance of rules and procedures designed to separate the parties. Accordingly, since the mediator deals directly with the parties, the mediator can focus the attention of the parties upon their needs and interests rather than on their stated positions.

Confidential: Unlike court cases, which are public, mediation is typically confidential, which means there are no records or transcripts and any evidence introduced during mediation cannot be used later or revealed. This reason alone can be a great reason to use mediation rather than file a lawsuit.

Preserves Relationships: One of the most overlooked benefits of mediation is that it can help preserve relationships, business and personal, that would likely be destroyed through years of litigation. Because it is a collaborative, rather than adversarial process, and because mediation isn't inherently a win/lose process, important relationships can often be saved.

Greater Flexibility and Control: In mediation, unlike in a lawsuit, the parties are in control. This means that the parties have a much greater say in negotiations and greater control over the outcome.

Better Results: For all the reasons above, parties generally report a better outcome as a result of mediation than they do from a lawsuit. Also, because there is no winner or loser, no admission of fault or guilt, and the settlement is mutually agreed upon, parties are typically more satisfied with mediation.

Greater Compliance: Finally, because mediation produces better results more quickly and cheaper, compliance with mediated dispute resolutions is generally higher than with lawsuits.

DISADVANTAGES OF MEDIATION

Mediation has several disadvantages of which you should be aware of:

First and foremost, it is very rare that the complete truth of an issue is revealed during mediation. On the other hand, in a court case, attorneys will have the ability to procure evidence and call witnesses, which is not available in mediation. In addition, courts are set up so that both parties in a case will be treated fairly. While this is also a goal in mediation, equitable treatment can be hard to achieve in certain circumstances.

Another disadvantage of mediation is that there are no formal rules for the process. If you don't employ a skilled mediator, this lack of formal rules can often result in an impasse. Mediation also relies on the cooperation of both parties. If the parties involved in mediation aren't able to compromise, the process can end in failure.

One of the biggest disadvantages of mediation is that it can be very difficult to make sure that the settlement is fair to both parties. If one party has access to more resources or is savvier about the mediation process, they may be able to get the other party to agree to a settlement that isn't in their best interests.

It's very common for mediation to end without the parties successfully reaching a settlement agreement. For instance, the parties might spend a tremendous amount of money, effort, and time only to find that resolving a dispute through mediation is impossible and that they will need to go to court after all.

WHY MEDIATION IS BETTER THAN GOING TO COURT?

Divorce can get ugly. We’ve all seen it happen. Couples lose track of their priorities, argue about past issues, call each other names and go into court with vengeance on their mind. The court procedure lends to that type of mindset. Family mediation, on the other hand, is for people who would rather avoid such conflict. It’s for those couples who want to split up but are willing to resolve their differences and settle their case as amicably as possible.

WHAT IS FAMILY OR DIVORCE MEDIATION?

Divorce or family mediation is when you and your partner meet with an independent neutral third party mediator, and resolve your dispute to end your relationship amicably. It covers issues such as division of property, custody, and access, parenting plans, child support, spousal support, estate planning, taxes and more.

[The author, Srishti Sharma is a second-year law student at IIMT School of Law, Karkardooma, affiliated to the Guru Gobind Singh Indraprastha University, Delhi.]

1. https://indiankanoon.org/doc/1558811/
2. Folberg, J. & Taylor, A. (1984) Mediation: A Comprehensive Guide To Resolving Conflicts Without Litigation, San Francisco: Jossey-Bass Publishers.
3. Folberg, J. & Taylor, A. (1984) Mediation: A Comprehensive Guide To Resolving Conflicts Without Litigation, San Francisco: Jossey-Bass Publishers.