Litigation and mediation are very different processes. If you are involved in a legal dispute, it is crucial that you understand both. While most people feel that issues must be litigated in court for justice to be served, mediation is often preferable for several reasons, aside from the fact that it costs far less than litigation.
And, in many jurisdictions, the court will require you to mediate before the judge will allow your case to be heard at a final evidentiary hearing. This is true because the majority of cases do settle either in mediation or after the mediator and the process have enabled the parties to better manage their expectations for their anticipated trial.
Let Me Count the Ways
So let’s consider how the two processes differ. Most importantly, in court, a judge, who is selected randomly, and who doesn’t know the parties or share their values, controls the process. Then, either the judge, or a jury of “your peers,” of whom the same is true, makes the decisions.
Meanwhile, mediation is generally conducted with a single mediator who is selected by the parties, and who does not judge the dispute or the parties themselves. This impartial mediator simply facilitates negotiations between the parties with the goal of helping them to reach their own agreements. The parties brainstorm with each other and the other professionals attending mediation, which may be their lawyers, their experts, and the mediator herself, to come up with creative solutions best suited to their needs. The parties make the decisions.
In litigation, the atmosphere is positional, adversarial, and hostile. In mediation, the atmosphere is more relaxed and peaceful.
In litigation, the level of conflict is hostile, adversarial, and disrespectful. The way that the discovery process is conducted in litigation discourages candor and transparency. Conversely, in mediation, the parties are encouraged to freely and confidentially present their positions to a neutral third party, the mediator, whether at the same time or in separate meetings, whichever makes the most sense.
In litigation, costs are unpredictable and often escalate rapidly. Even after judgment is rendered, post-judgment litigation is common and costly. Adversarial expert battles are financially inefficient. On the other hand, the cost of mediation is comparatively far less than litigation.
In litigation, the judge mandates the timetable, and crowded court dockets regularly cause delays, increasing the cost when preparation has to be repeated. In contrast, mediation typically takes less time than litigation because the parties have more control over the process rather than being dependent on the judge’s calendar. Despite that, in complex matters, more than one mediation session may be necessary before a resolution is reached, mediation still takes far less time overall.
In litigation, separate experts support each party’s positions (at twice the expense). And non-transparency requires the opposing experts to work harder than in mediation, not just developing and defending their own opinions, but also preparing the attack on the opposing expert’s position. In mediation, the clients can jointly retain experts to inform and guide them in developing transparent data into mutually beneficial solutions.
In litigation, judges like to split the baby, if they can. Lawyers fight to win, but someone always loses, and sometimes both parties, in a court-imposed “lose-lose” judgment. In mediation, lawyers often problem-solve to help both parties generate an interests-based, “win-win” agreement.
Litigation is public and subject to media attention. In contrast, matters discussed in mediation remain confidential.
The court process discourages communication between parties. In mediation, the mediator often educates and assists both parties to effectively communicate with each other, despite their differences.
Litigation requires strong advocacy and strategy skills, a la Perry Mason, while mediation focuses more on problem-solving and communication skills.
Finally, litigation is mandatory if the parties cannot agree to another dispute resolution process to reach agreement. Mediation, on the other hand, is usually voluntary, although a judge will often order it when the parties have resorted to litigation.
As you can see, there are many benefits to choosing mediation over litigation to resolve your dispute. Convincing advocates make good mediators, and the lawyers at Open Palm Law are both.
If you need help negotiating your way through litigation or mediation with grace and with respect, we can help. To determine if our services might be right for you, visit us at Open Palm Law or email me at Joryn@OpenPalmLaw.com. We are here for you, and for your family, during the stress of whatever change your family is going through!
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About this week’s author, Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
