What the public learns about the law is often the portrayal of law by the media. It is frequently limited to such things as sensational reports of excessive police conduct, political figures engrossed in scandal, audacious murder trials, or large personal injury jury verdicts. Scant media attention is paid to the thousands of disputes each year that are quietly resolved through mediation. Why? Because these cases are not deemed newsworthy.
In the past thirty years however, mediation has developed into a powerful adjunct of our legal culture. With effective design and management, mediation has the capacity to resolve virtually any dispute. Yes, any dispute. What makes mediation a “good” alternative to a jury trial or arbitration?
Several things:
1. Whilst in a trial and/or in an arbitration, the power is solely vested in judges, juries or arbitrators, in mediation, the parties retain ALL of the decision-making power. Mediation is a process that is wholly controlled by the participating parties. The parties decide and negotiate what it will take to reach settlement, and they decide the trajectory of the mediation. They are also afforded the opportunity to influence how the opposing side views the case, demonstrate an ability to negotiate, and demonstrate skills of persuasion. Because it is impossible to predict with certainty any trial or arbitration outcome, any litigant, defendant, and attorney should consider mediation as a solution to ongoing litigation due to its certainty. By certainty we mean certainty of results. Parties involved in the mediation process are involved in decision making, and they can structure practical settlement to suit their needs.
2. Unlike trial, mediations take place in a mutually agreed upon place, on a mutually agreed upon date, in a private confidential setting. Most jurisdictions have adopted statutes or court rules that create a confidentiality privilege for mediation. These rules are often supplemented by confidentiality agreements furnished by mediators to the parties at the beginning of the mediation. Among other things, mediation confidentiality allows parties the freedom to safely and candidly discuss risks with the mediator, further affording parties the opportunity to salvage relationships that might be otherwise be lost in the public scrutiny and commotion of a jury trial.
3. Mediation may allow parties to create remedies and discuss solutions that are not available in trial setting. The remedies available can be much broader than traditional legal remedies and allow for a greater peace of mind moving forward. An example might be a former employee negotiating a favourable letter of recommendation from their former employer in an employment dispute mediation. In a trial setting, no party is capable of producing such a benefit. Another example may be in divorce mediations, more flexible custody and financial arrangements can be negotiated in private discussions than can be obtained via judicial decree.
4. Compared to jury trials or arbitration, mediation is a much less costly endeavor. In some jurisdictions parties can wait years to get a trial date. Arbitration process and procedure can also take many months or in some cases years (due in part to scheduling, collection of evidence, rebuttals etc.). By contrast, most mediations occur in a single day and can be scheduled either before a suit is filed or at any time before a trial or arbitration hearing. Moreover, scheduling can occur at an earlier time than traditional litigation. This ease in scheduling effectively eliminates the costs associated with hourly billing for attorneys, waiting indefinitely for a trial date, the costs of arbitration hearings, depositions, expert witnesses, to name a few.
In a majority of cases, mediation should be considered and attempted because of all of the positive factors. Mediation can bring a speedy, final, and comforting resolution to a case. Waiting for a trial or an arbitration hearing is not only financially demanding, but more importantly, emotionally stressful.
Ongoing conflict has the ability to destroy anyone's sense of happiness, incur stress, wreak havoc on personal lives, businesses, and not only. Mediation provides an inviting one-day alternative. Parties to any dispute, especially those in which continuing relationships matter, should seriously consider mediation as a preferred alternative to trial and arbitration. It is beyond serious debate that mediation generally presents far more attractive opportunities or beneficial resolution for the parties involved due to the “good will” and “good of all” nature of the proceeding.