Mediation: A Beneficial Way to Resolve Civil Litigation

Civil litigation can be lengthy, expensive and emotionally draining for clients and counsel alike. The judicial system provides a time-tested structure for resolving legal disputes that often leads to prolonged conflict, high legal fees and outcomes that leave parties dissatisfied. Mediation offers an more efficient, cost-effective and collaborative alternative method of dispute resolution.

Unlike litigation, which is adversarial in nature and driven by procedural rules, mediation focuses on communication, compromise and creative problem-solving. The process is results-based rather than procedural, aimed at achieving solutions that the parties agree upon rather than being forced upon them.

Some aspects of mediation that are attractive to clients include:

1. Cost-Effective Alternative to Litigation

One of the biggest drawbacks of litigation is its cost. Legal fees, court fees, experts, disbursements and other expenses add up quickly, particularly as trial approaches. Sometimes these costs overtake the value of the damages award itself! Mediation, on the other hand, is typically much cheaper.

Mediation sessions typically occur early enough in the litigation that the costs have not become a barrier to resolution. However, the parties have garnered enough evidence from which to form a predictive valuation of their case at trial.

Parties are able to share the cost of the mediation itself, reducing the burden on either side. They are also able to carefully select a mediator and length of mediation session that suits their clients' respective considerations as to case complexity and budgetary constraints.

2. Faster Resolution of Disputes

Taking litigation cases to trial can take months, or even years, especially if appeals are involved. Mediation, however, can be booked within the parties' schedules and completed in a matter of hours. This allows all involved to move forward more quickly.

Scheduling mediation is simple as reviewing calendars, rather than waiting for court dates. Even the most complex cases can be reviewed and resolved, typically, in one session.

3. Confidentiality and Privacy

Unlike trials, where records are public, mediations are private matters and all discussions remain confidential. Sensitive information, such as medical records, remain private and are not maintained following the mediation. The parties can speak openly without fear that their statements might be used against them later.

4. Greater Control Over the Outcome

In court, a judge or jury makes the final decision, often leading to unpredictable results. Mediation, on the other hand, puts control in the hands of the disputing parties. The parties actively participate in crafting a mutually agreeable solution.

Mediation encourages parties to find creative resolutions that courts may not be able to provide. There is no risk of a "winner-takes-all" judgment that leaves one party aggrieved at the end of the litigation.

In mediation, the parties have an opportunity to reach win-win solutions rather than being forced into a win-loss scenario.

5. Higher Satisfaction

Because mediation results in agreements rather than forced judgment, participants are often more satisfied with the process compared to litigation. Parties who are in business relationships (i.e. contractors and sub-contractors) are more likely to continue conducting business together following mediation.

6. Flexibility and Adaptability

Mediation is far more flexible than court proceedings. The process can be tailored to suit the needs of the parties, including the scheduling, duration, choice of mediator, forum (virtual or in-person) and other factors that may impact on the effectiveness of the dispute resolution process.

Parties can engage with the mediator prior to or following the mediation to enhance the process and encourage resolution. Creative solutions provided at mediation may go beyond what a judge or jury can impose. Flexible scheduling and follow-up appointments can facilitate resolution even after the mediation has concluded.

Conclusion: Mediation as a Crucial Function

Mediation offers a powerful tool in the litigator's toolbox, providing fast resolution, lower costs, privacy and greater control over outcomes than trial. By fostering collaboration and reducing conflict, it allows parties to move forward in a way that benefits all involved.

Rather than leaving the outcome in the hands of a judge or jury, mediation allows parties to take charge of their resolution and reach a fair, mutually beneficial agreement. It is often the most practical way of resolving disputes.

If you are considering mediation for your matter, consult a qualified mediator, such as James Shafman, to explore whether it's the right approach for you.