The Pros and Cons of Mediation

Thu, 11 Dec 2008 01:48:50 GMT

Mediation is a popular form of alternative dispute resolution. In many situations it provides parties with a good opportunity to resolve their differences without going to court. However, there are drawbacks to the mediation process. Therefore, before you agree to engage in mediation it is important to think about whether it is the best way for you to decide your current dispute.

Pros

The benefits of mediation include:

Price: Mediations cost less than litigating a dispute in court. This is important to many people who are looking to solve a dispute.

Time: Many state and federal courts are backlogged and cannot hear cases as quickly as litigants would like. Mediations, on the other hand, can be scheduled at the convenience of the parties and the mediator. Thus, in certain situations such as divorce or employment disputes, many parties favor mediation over litigation.

Control: if your case goes to court or to arbitration then you are bound by the findings of the judge or arbitrator. However, in order for a mediation agreement to be enforceable you have to sign it and approve it. Without your consent, the agreement has no effect.

You Reserve the Right to Litigate: If you do not like the outcome of the mediation and you do not reach a mediation agreement then you can proceed to court.

Cons

The drawbacks of mediation include:

Waste Time & Money: Mediations are often marketed as being both economically and time efficient. However, that marketing assumes that both parties are honestly willing to mediate the dispute. If one party (or both parties) do not enter the mediation with the intention to make concessions and reach a compromise then the mediation is likely to fail. While mediations are less expensive and take less time than court cases, they still cost money and can last anywhere from a few hours to a few days. The cost of the mediation, and obviously the time it took, are not refundable and the parties to a failed mediation typically need to incur the costs of litigation after the failed mediation is over.

You Agree to a Bad Agreement because of a Bad Mediator: Mediators are trained professionals. However, as with all professionals, their abilities and their personal biases differ. You may end up with a mediator who is new to the business and who helps draft a mediation agreement that is incomplete. Or, you may end up with a mediator who has been through a dispute similar to yours and has a definite bias in favor of one party. The best way to find a good mediator is to rely on your attorney or your friends for personal recommendations and to ask any potential mediator specific questions such as how long that person has been a mediator, how many disputes he or she has mediated and how many have ended in a mediation agreement that is signed by both parties. While a mediator cannot share specifics of any case with you, he or she can give you general information that does not identify the parties in any way and should be willing to answer your questions.

Information Will Not Be Made Public: While this is likely a benefit to mediation in a family law case, there may be other situations where one of the parties wants the information to be public as it would be in a court case. For example, an employee who was treated unfairly might want that information to come out in court and be accessible to the media in the hopes that it will help dissuade the company from acting that way again in the future.

Mediation is very useful for resolving many different types of issues. However, before you agree to mediation you must carefully weigh the pros and cons of this dispute resolution method to determine if it is likely to be successful for you.

How Mediation Works

Thu, 11 Dec 2008 01:49:43 GMT

You may be intrigued by the idea of mediating, instead of litigating, your next dispute. Often, mediations are less expensive and less time consuming than litigations. They also allow you to stay in control of the situation since no resolution is reached unless you agree to it. That said, it is important to understand exactly what happens at mediation before you agree to participate in the process.

First, you and the other party must agree to participate in a mediation and agree upon who will mediate the dispute. Often, this is negotiated through your attorneys. Therefore, it is important that you hire an attorney who has experience representing clients in mediations.

While an attorney is not a necessary component of a mediation, an attorney can be very important. An attorney’s job differs from a mediator’s job. The mediator’s job is to help the parties come to an agreement. It is not the mediator’s job to provide legal advice or to advise either party about whether or not to accept a resolution to the dispute. Therefore, an attorney can be useful. Some parties prefer not to bring their attorney with them to the mediation session. In that case, you may review the mediation agreement with your attorney before you sign it.

The next step is to arrive at the place chosen for the mediation. Once there, the mediator typically holds a joint session with both parties to the dispute and reviews the ground rules for the mediation and explains how the process works.

After the mediator explains the rules, the mediator usually asks each party to explain the issues that brought them to the mediation. Some mediators do this with both parties present and some put the parties in separate rooms and hear from them individually. This is usually a matter of preference for the mediator and may depend, in part, on how contentious the parties are toward one another.

Once the parties have had a chance to explain their side of the dispute to the mediator, the mediator will ask both parties for a proposed resolution to the problem and then share the information with both parties. The mediator will help the parties reach a consensus without providing legal advice.

If the parties do not reach an agreement and do not wish to schedule another mediation session then the mediation ends with no resolution and the parties are free to take the matter to court.

However, many times the mediation does end in a mediation agreement. The mediator will help the parties put their agreements in writing. Once the parties, with the advice of counsel (if they so choose), have read the agreement then they will sign it and it will become binding. If necessary, the mediation agreement should be filed with the local court. In some jurisdictions the parties can reach a partial agreement and decide to litigate any remaining issues or they can reach a temporary agreement where they agree to try out a proposed mediation agreement for a set amount of time and then reconvene.

Mediation is meant to be a more efficient, less formal and less contentious process than litigation. It is important, however, that the parties go into the mediation with a spirit of compromise and a basic knowledge of how the process works in order for their case to be successful.

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The Pros and Cons of Mediation

How Mediation Works