Mediation has been gaining popularity because it can often be an effective alternative to litigation. It almost goes without saying that reaching a mutual agreement is a better way to resolve a conflict than fighting. Below are some common advantages of mediation when compared to litigation.
- Faster. Court cases can often take a very long time, sometimes more than a year. Reaching a settlement (which can be done through mediation) greatly reduces the time involved.
- Less Expensive. Fighting court battles can quickly become very expensive. It is not uncommon to incur tens of thousands of dollars in attorney fees in a highly contested court case. If mediation is successful, the cost can be much less.
- Confidential. Mediation communications can be kept confidential, while most court proceedings and filings are open to the public.
- More Control. Mediated agreements are voluntarily accepted, while court orders are imposed. This means that the parties have more control over a mediated outcome, and can know in advance that they will be able to live with that outcome.
- Better-Tailored Outcomes. No one knows the interests of the parties better than the parties themselves. It is therefore possible for mediated agreements to be better tailored to fit the parties’ interests. Judges usually cannot fully understand the interests of parties based on the necessarily limited information they hear in court, and must make the best decision they can with that limited information.
- Less Destructive to Relationships. This difference can be very important for parties that will have to continue to deal with each other after the dispute is resolved. The prime example of this is child custody cases. Our justice system has recognized that it is usually better for children if their parents are able to jointly agree on a parenting plan, and judges will often refer parties to mediation to try to settle disputes regarding their children.
- More Satisfying. For all of the above reasons, a great many people find that they are more satisfied with a mediated agreement than they are with a court order.
- More Followed. Parties generally comply with mediated agreements better than they do with a court order issued following adversarial proceedings. Possible reasons for this may be that they had an active role in creating the mediated agreement, are more satisfied with the agreement, and have a better relationship with the other party.
While mediation can have many of these advantages, it is also possible that parties will not be able to reach a mediated agreement. However, parties are often able to reach partial agreements, and thus reduce the number of issues that need to be litigated.
If the parties cannot reach an agreement, they will usually still have all of the other legal remedies that were available to them before mediation. The primary disadvantage of mediation is that the mediator needs to be paid regardless of whether an agreement is reached, so mediation can add to the cost of some cases.