- There is only one solution to a dispute and either we go my way or the way to the other side.
If an argument leads to a legal dispute, a legal decision is made by a judge or jury. The traditional legal system ignores possible solutions not allowed in court. A simple solution can often be found quickly and easily. In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.
Mediation provides for the exploration of an increased range of options and ‘win-win’ solutions by focusing on what can be changed now to resolve the dispute and what can be done in the future to prevent a reoccurrence. Parties are free to formulate how they wish to proceed for the future and express the ground rules for this in an appropriate agreement. Mediation facilitates the identification and exploration of all the issues in the dispute, including those that may not be revealed in litigation or arbitration due to the application of rules of evidence. Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.
- The parties in a dispute know exactly what they are arguing about.
Often when two parties fight, emotions take over, which clouds the issues and brings in many other unresolved arguments and baggage. The current issues can be confused and other issues may creep into the dispute. Mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.
- In a dispute, there is always a winner and a loser.
Everyone loses in an argument, not just the loser. Sometimes the parties in dispute had previously had a good relationship. Mediation can improve communication & preserve relationships between the parties and enhance the likelihood of continuing their relationships. Mediation can assist in avoiding grandstanding, power-plays and deadlocks by providing a level playing field. Mediation assists in reducing hostility and increasing understanding whereas litigation is an adversarial process likely to exacerbate ill-feeling, heighten conflict and mistaken assumptions between the parties. Mediation allows the parties to work collaboratively towards a mutually beneficial solution.
Mediation prevents negotiations from getting bogged down by moving the parties from taking adversarial positions to focusing on interests, mutual understanding and finding common ground. Unlike litigation where the goal is to ‘win’ against the opposing party, mediators assist the parties to restore co-operation and relations by focusing on the present and future, not the past.
The process maintains privacy and confidentiality, which means personal and corporate reputations can be preserved. Public knowledge of a dispute can cause even more damage especially if the media or high profile parties are involved. Mediation provides the opportunity to work issues out in private. Important relationships with customers, employees, creditors, suppliers, family or neighbours often become strained if a dispute becomes public. Discussions between the mediator and each party are confidential, increasing the prospect of resolving the dispute.
- If I hire a lawyer to represent me in my business dispute, it will save me a lot of time, money and aggravation in the long run.
A lawsuit can drag on for years and the legal fees can pile up. Mediation allows the parties involved to arrange the time and location to mediate. Parties have a greater degree of control over the outcome by being directly involved in the resolution of the dispute and negotiating their own settlement. Mediation offers the highest level of participation for the parties concerned of any alternative dispute resolution process. Each party has the opportunity to have their ‘say’ and have their concerns/needs addressed and retains the right to withdraw at any time. The Mediator provides a fair and objective process in a controlled, supportive environment for negotiations.
Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting. Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties’ interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
- The only way to ensure that a resolution to a dispute is enforceable is to go to court and have a judge issue a decision.
If an agreement is reached during mediation, the mediator writes up an agreement at the end of the mediation. It becomes part of the official court record. If one or more parties do not live up to the term of the agreement, the court enforces the terms. Research indicates that mediated agreements have a higher compliance rates than those ordered by a judge. Mediators who encourage parties to define the steps in implementing the agreement often avoid misinterpretation of the agreement. Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.
The best part of mediation is that if it doesn’t work out, you can always take the case to court. Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
Deborah Beylus is a certified mediator.