When two or more people, or companies, have a dispute that needs to be resolved, they have a couple of options. If they decide to go to court, they get the benefits of seeing all of the other side's evidence, presenting their claims or defenses before a judge or a jury and the ability to appeal.
But there are many benefits to choosing mediation. Mediation, a form of alternative dispute resolution, is based on the idea that all sides believe that their dispute can be resolved with the help of a mediator who acts as a "middleman" to bring about a compromise. The mediator helps the parties communicate their wants to each other in a private and confidential nature, with the hope that they can come to a mutually acceptable agreement.
One advantage of mediation is that the parties in conflict themselves are responsible for coming to an agreement. Their dispute is viewed as a problem that needs to be solved and the parties decide the outcome between themselves, with the mediator's help. Unlike a judge or jury who makes the decisions, the mediator doesn't make any binding decisions but rather just helps by examining the underlying causes of the problem and looking at what solutions best fit each side's needs and interests. Going to court can cause a strain on relationships while mediation looks beyond the immediate issues to help end the problem, not the relationship. Therefore, mediation can work for neighbors, divorcing spouses, supervisors and their employees, business partners and family members who have to continue to deal with each other.
Another advantage of mediation is that it is more time and cost effective than litigation. For example, years may pass before a case comes to trial, while an agreement to mediate can resolve the dispute in as little as a few hours or in sessions over a couple of weeks. Also, since the court process can be expensive, sometimes the costs can exceed benefits, in time lost and money spent. Rather than paying court fees or lawyer fees for an extended lawsuit, that money could be better applied to solving the problem. Also, mediation services are available at a relatively low cost for some types of cases.
Finally, the mediation process is less stressful because it is less formal (no testimony under oath, for example), while still protecting confidentiality. Going to court can be very stressful since there are strict rules and intense preparation required. Mediation is flexible and informal and can be less intimidating than going to court.
The key is finding the right mediator, someone who is experienced, knows the area of law of the dispute and is not afraid to make recommendations to both sides. Depending on what the 2 or more sides are looking for, mediation may be a better route than litigation. Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal collaborated with me on this blog.