Mediation Compared to Litigation

Through countless movies and television dramas most people are familiar with the glamorized process of litigation. We have all seen the hopeless case that the plucky young attorney takes against all odds and through a combination of skill, luck, moral superiority and unrelenting determination prevails against the forces of corruption. What is really miraculous is that the case resolves itself in 30 minutes, 1 hour or 2 hours 30 minutes depending on the length of the drama. If only real life worked this way.

In real life litigation is a grueling process that subjects the litigant to enormous financial and emotional pressure. Cases can grind on for years. In point of fact, unless the amount in controversy is approaching one-half million dollars, it is very difficult to justify the expense of litigating that particular problem.

A form of alternative dispute resolution that has become increasingly popular since the 1970s is mediation. Mediation is the process where a third-party non-decision-making neutral assists parties who are already involved in a dispute by facilitating their communication with the goal of having the parties reach a voluntary amicable resolution of their conflict.

The aim of mediation is to assist parties in reaching an agreement that satisfies all participants. A mediator has no authority to make decisions with regards to the future of the parties. A mediator is there to help the parties more effectively communicate with one another. A key role for mediators is to explore and encourage creative options for resolutions from the parties.

Mediation is a broad concept that encompasses a variety of topics. Mediation is not just found in the legal realm, it is a process that is also used in the workplace, in schools, and churches. Mediators' styles also vary; they can act more facilitative, they can be more evaluative and some mediators are rather directive in their personal style. Mediators are not all lawyers; rather anyone can train to become a mediator. 


One thing that remains the same throughout all of the areas of mediation is what is required of a mediator. Mediators must manage the process in order to provide enough structure so opportunities for resolution can be generated. In mediation, controlling the process means creating a comfortable environment for the parties to speak freely. Parties are encouraged to participate and say whatever is necessary in order to reach an agreement.

Successful mediation is based on the idea of self-determination and voluntary participation. The best practice mandates that mediations are always kept confidential in order to ensure trust among the parties. Oftentimes in mediation there is not an apparent common interest from the onset, but rather the mediator must work to find those shared goals. Therein lays the genius of a skillful mediator.

Although litigation makes for a much more compelling movie or television drama, the fact of the matter is that mediation is a far more satisfying process for the participants. In litigation parties can spend hundreds of thousands of dollars and proceed to a trial where there is no guarantee of the outcome. The success rate of mediation is remarkably high. Depending on the mediation provider, is not unusual to have the success rate well over 80% and approaching 100%.

Given the high success rate, the relatively low cost, and the much lower levels of stress and physical discomfort, most people who have a civil conflict should 
seek to mediate their cause of action before they litigate.

Braxton Douglas has written extensively on legal issues and the practice of law.David D. Stein is an Attorney and Divorce mediator associated with Liaise Divorce Solutions, a mediation service and law firm specializing in marital reorganization and dissolution proceedings, with competent and knowledgeable San Francisco family lawyer.

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