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Exploring Mediation as an Alternative to Traditional Legal Disputes

published April 16, 2023

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( 12 votes, average: 4.6 out of 5)
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Summary

Mediation is an effective way to resolve disputes without going through a lengthy and costly litigation process. It is a process whereby the parties involved in a dispute agree to work with a neutral, neutral third-party mediator to help them come to a mutually beneficial agreement. Mediation is a less expensive and more time efficient option than litigation and can be used to resolve any issue or dispute, including those related to family law, employment, civil litigation, and business disputes.


Mediation is a non-adversarial process wherein the parties work cooperatively to create a mutually agreeable solution rather than relying on a court to make a decision. During mediation, the mediator helps the parties to communicate and identify the underlying issues and concerns. The mediator will then work with them to develop a viable solution, which could include anything from a settlement to a temporary arrangement. The goal of the mediator is to help the parties come to a satisfactory resolution without the need for a lengthy and expensive trial.

Some of the benefits of mediation include cost savings, privacy and confidentiality, a positive outcome, and a quick resolution. Mediation can also result in good faith agreements, which can be enforced in court if the parties are unable to come to a resolution on their own. Additionally, since mediation is a private process, the parties can discuss sensitive matters without fear of the agreement becoming public record.

Mediation has been used successfully to resolve many types of disputes, including those related to family law, civil litigation, business, and employment. It can also be used in situations involving conflicts between individuals, organizations, and government entities.

When choosing a mediator, it is important to select one who is knowledgeable and experienced in the type of dispute that is being resolved. Additionally, it is important to select someone who is unbiased, who will be impartial and whose judgment will be respected by the parties. The mediator should also be able to create an environment which is conducive to productive and meaningful dialogue.

Mediation is a viable option for resolving disputes without the need for litigation. It is an efficient and cost-effective way to reach a resolution. Parties in dispute should consider using mediation to resolve their conflicts and come to a mutually beneficial agreement.
 

Mediation: A Better Way

Mediation is becoming increasingly popular due to the high costs of litigation in the United States. It has been adopted as a cost-effective alternative to the traditional court system and offers a number of advantages to both parties involved in a dispute. Hiring a mediator can be less expensive than the costly court proceedings, eliminating the need for the time-consuming process of filing paperwork, arguing in court, and possibly having a lengthy trial. By utilizing mediation, the parties involved are able to come to an agreement with the help of a neutral third party, allowing them to resolve their dispute in an efficient and cost-effective manner.
 

The Benefits of Mediation

Mediation is beneficial to both parties involved in a dispute as it allows them to settle their disagreement without taking the case to court. Rather than having to go through the adversarial court system, mediation enables the two parties to discuss their issues in an informal and confidential environment, without the worry of having their dispute aired in the public. With a mediator present, parties are able to find common ground and come to an agreement without the involvement of the court. Mediation also offers an opportunity for the parties to learn from the dispute and develop new strategies for communication, as well as coming up with solutions that may not have been previously considered.
 

Mediation Can Help Strengthen Relationships

One of the most beneficial aspects of mediation is its ability to help parties to mend their relationships. Whereas litigation often yields animosity and bad blood between the two sides, mediation offers an opportunity for parties to discover common ground and come to terms with their differences. Mediators are also trained to help parties maintain a cordial and respectful relationship during the process, even if the parties cannot come to an agreement. This can be extremely beneficial for parties that must continue to work together, as it enables them to emerge from the dispute with a better understanding of one another.
 

Benefit from Cost-Efficient Solutions

Aside from its ability to help parties to maintain a respectful relationship, mediation can also offer an economical resolution to a dispute. As mentioned earlier, going through traditional court proceedings can be an expensive and lengthy process. With mediation, the costs involved are much lower and the process can be completed in a fraction of the time. Additionally, because the parties can come to their own agreement without the involvement of a judge or jury, the entire process remains confidential.
 

An Effective Way to Resolve Disputes

Mediation is quickly becoming a popular choice for those looking for a cost-effective and timely resolution to their disputes. By utilizing the services of a qualified and experienced mediator, parties are able to come to a mutual agreement while also strengthening their relationship. What's more, it allows them to benefit from a cost-efficient solution that is often preferred over the adversarial nature of the court system.

<<It was a long lunch, and by its end, Bill appeared understandably crestfallen. His divorce would take more time and money than he'd anticipated. The unspoken question was "Isn't there a better way?"

A dispute by its very nature is cantankerous. Party A may have been wronged by Party B, and Party A wants relief. Unfortunately, Party B disagrees. Whether it's a dispute over property and child custody after 20 years of marriage, a competing claim on an estate, or a commercial complaint, litigation is often time-consuming and expensive. But an increasing number of potential litigants is beginning to realize that litigation is only one of its dispute resolution options. Today, more and more courts are turning their attention toward arbitration and mediation as viable alternatives to litigation.

Most state and federal courts are suffering from increasing caseloads, more complicated trials, and stagnant or diminishing staffs to deal with the rising workload. Federal and state governments, increasingly strapped for cash, are making cuts in every possible area, including the judicial system. And litigation continues to be as popular as apple pie, which may be one of the reasons the plaintiff and defendant costs associated with it are rising.

Is there any hope on the horizon?

"The primary solution is arbitration," notes Roger Haydock, Professor of Law at the William Mitchell College of Law. Haydock is a nationally recognized expert in alternative dispute resolution. The "combination of mediation and arbitration is helping reduce the workload of judges in civil cases," he explains. It's also reducing the time spent in conflict and the overall cost of that conflict.

The three most obvious dispute resolution options are litigation, arbitration, and mediation. Litigation is the traditional process of working through the American court system to resolve disputes. Usually it involves a judge, jury, and lawyers representing litigants.

According to Leonard P. Reina—a Florida attorney, mediator, and arbitrator for the last two decades—"arbitration and mediation are similar in that they are alternatives to litigation or are sometimes used in conjunction with litigation to attempt to avoid litigating a dispute to its conclusion." Since these alternatives often reduce the time spent in trial preparation, they also reduce dispute costs.

While arbitration and mediation are alternatives to litigation, they are somewhat different in their approaches to resolving disputes. Arbitration involves appointing an arbitrator to hear the facts of a case and render a decision, usually in writing. Arbitration can be binding or non-binding.

Mediation involves hiring a mediator to help two parties reach a mutually agreeable solution to their problem. A mediator doesn't judge a case, but rather facilitates a discussion between two parties and, hopefully, helps them mutually resolve their dispute.

The three forms of dispute resolution are very different. According to Reina, "Mediation requires a different mindset and approach than does a trial. Instead of the prevailing party 'besting' the opponent through research, knowledge, discovery, testimony, presentation, and persuasiveness, the parties participate in a forum under the guidance of the mediator, where they attempt to negotiate a settlement based on what they can accept… whether or not they may be entitled to more or could have gotten more in a court of law."

In the face of mounting public pressure over clogged American courts, alternative forms of dispute resolution are continuing to gain in popularity. A cursory review of recent press on the subject of state laws and ADR illustrates the trend. According to ADRWorld.com, recent articles on state efforts to create alternatives to litigation include Medical Malpractice ADR Plan Advances in New Hampshire, Kentucky Circuit Plans Mediation for Criminal Cases, Arbitration for Medical Negligence Debated in Ohio, and Missouri Senate Approves Construction Mediation Proposal.

States look toward litigation alternatives for a few reasons. As previously noted, alternatives often require less time and money and are simply easier to pursue. But perhaps just as important, arbitration and mediation—for many types of disputes—can be much more common sense ways to resolve disputes.

"If you think about it from the perspective a judge," comments Haydock, "how is a judge going to determine what's best for the children?" Isn't it better, Haydock suggests, for the parties with the most familial knowledge to resolve the issues?

Perhaps that is one of the reasons Minnesota state courts, in 1994, created Rule 114, which, according to Haydock, "requires parties to avail themselves of some form of ADR. The vast majority of states don't have a comparable rule, but there are a growing number of states following the Minnesota model."

Reina agrees. "Mediation has most recently been rediscovered across the country, and in particular in Florida, a leader in the implementation of mediation, where almost all lawsuits are required to be mediated before a court will allow them to be put on the trial calendar. Mediation has been found to be effective in resolving approximately 75% of all cases and greatly reduces the trial docket of courts throughout Florida."

There are, of course, many instances when mediation is not the best form of dispute resolution. Experts disagree, but no one believes mediation is always the best choice. According to the American Medical Association (AMA), mediation in a managed care setting "is of very little practical utility with respect to disputes involving physicians." In an AMA document entitled Dispute Resolution: Litigation vs. Arbitration, the AMA cites a variety of reasons why mediation may not be a good alternative dispute process for doctors having disputes with managed care organizations (MCO).
  • Most MCOs have internal procedures that utilize some form of mediation. If the internal process didn't work, the AMA reasons, a second mediation is also likely to fail.
  • Mediation is non-binding. One possible outcome of mediation is to require a physician to spend scarce time and energy in pursuit of a mediated agreement that "will not create a binding result." In the end, both parties may turn their efforts toward litigation.
In the end, my friend Bill's divorce was not as difficult as everyone expected, in part because he and his spouse settled some of their disputes using alternative methods. Because it occurred in Minnesota, he was forced to avail himself of an effort to arbitrate, though it was non-binding. While he agreed with the arbitrator's findings, his spouse didn't, at least initially. The litigation process, as expected, dragged out-but for roughly six months, rather than one year.

Instead of engaging in a protracted legal battle, they renegotiated some of the arbitrator's findings. One last sticking point required them to hire a mediator. Both of them were less than satisfied with the mediator's conclusion—which probably represents the compromise they were seeking.

In the end, Bill's divorce was expensive and time-consuming, but alternatives to litigation helped his ex-wife and him resolve their dispute more quickly and with less expense than if they'd relied solely on going to trial.

published April 16, 2023

( 12 votes, average: 4.6 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.