Mediation – A Modern Alternative to Litigation

By: Benjamin J. Freeman, Attorney—

Traditionally, parties attempting to resolve a dispute end up litigating their case in court. It is no secret that the litigation process is long, costly and unpredictable. Whether the parties are disputing a business transaction gone wrong, dissolving a marriage, or trying to determine liability for an auto accident, the process can drag on for years and cost all involved thousands of dollars. While all litigation does end eventually, mediation offers a quicker and cheaper solution to the litigation process.

In many cases, mediation can be an effective way to resolve disputes without direct court intervention. A mediation is led by a registered independent mediator. The mediator’s job is to help both sides come to an agreement which can mutually resolve the dispute. The mediation process is non-adversarial and encourages both parties to reach a satisfactory compromise. Many mediation sessions last less than one day and can resolve disputes for a fraction of the cost of litigation. Due to the relative speed and non-adversarial nature of mediation, the mediation process is much less stressful than pursuing a resolution through the court system.

Mediation can be used to resolve a wide variety of legal issues, including:

Regardless of the type of legal issues to be brought before the mediator, the mediation process is the same. The mediator will make introductions to the parties and their counsel. This can be done with all parties in the same room or separately. Following introductions, the parties will likely be split up for the duration of the mediation process. The mediator will review facts of the dispute with each side in order to determine what issues are important to each party. If the parties are represented by an attorney, the attorney will often times send a letter known as a mediation statement to the mediator ahead of the mediation in order to provide the mediator with a summary of the facts and issues. The mediation statement is important because it allows the mediator to start the mediation with a basic understanding of the goals of each party.

Once the mediator has become acquainted with each party and received background information from both sides, the mediator begins by starting a dialogue between the parties. The mediator will determine a starting point for the negotiation. From there, the mediator works to find points where the parties can agree and compromise. Because the mediator is independent from the parties, he or she can offer an outside perspective to each side. Mediators can independently evaluate the strong points and weak points for each side and offer alternative ways to resolve the dispute.

It is important to understand that mediation does not always end with a compromise. Whether the parties voluntarily agree to attend mediation or are ordered there by a court, the ultimate settlement at mediation is up to the parties. The mediator cannot force a settlement. If the mediation fails, the mediator informs the court that the parties could not reach an agreement and the litigation process resumes.

In the end, a successful mediation often ends with both parties voluntarily compromising on their position and meeting somewhere in the middle. Many times neither party ends up completely satisfied with the result but neither party is completely unsatisfied either. The utility of mediation is that it incentivizes both sides to give up something they want in exchange for a quicker, cheaper and often fairer resolution of the ultimate issue. When the parties mediate a dispute in good faith, both sides end the process better off than they began it.

About the author

Benjamin J. Freeman is a graduate of Jay County High School, Ohio Northern University, and the University of Dayton School of Law.

alternative dispute resolution, family law, mediation, personal injury, settlement

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