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.
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.
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.
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