Why You Should Consider Mediation Before Going to Court
Facing a dispute with a person or a business is not a fun situation, especially with the prospect of going to court hanging over your head. Before you plunk down a big payment to a lawyer, consider an alternative option. For smaller, less complex disputes where both sides are interested in finding a solution (rather than trying to punish or get back at the other), consider the possibility of mediation. Mediation offers you a lot of benefits. It can save you time, money, and stress and allow you to seek a solution to your dispute in a collaborative and empowered way. Let’s explore this option in greater detail.
What Is Mediation?
You may have heard a friend mention her good experience with divorce mediation. While mediation is a popular method for reaching divorce settlements, mediation can be used on nearly any type of non-criminal dispute.
Mediation is a method of conflict resolution where a neutral third party works with both sides of a dispute to determine a fair and equitable solution. This third party is known as the mediator and is typically someone with a legal background who has received extensive mediation training.
What differentiates mediation from a court action is that the mediator is not a judge, but rather a facilitator. The mediator’s suggestions are non-binding, and it is really up to the parties involved to come to a solution that both can live with.
In a typical mediation, the mediator will:
- Explain the process, rules, and guidelines to both parties
- Request that each party describe the situation from their point of view
- Ask questions to better understand the context and perspective of each party
- Privately interview each party to seek understanding and to determine what solution they are seeking
- Facilitate discussions and negotiations and help both parties find a solution
- Put an agreement between the parties in writing and ask them to sign
Is mediation the right option for you? Here are the primary benefits of choosing this dispute resolution method:
Expense is almost always a significant concern when considering legal action. If you end up going to court, you’ll likely need to hire a lawyer. That means you’ll be paying for every hour that lawyer and their teamwork on your case, including all the time the lawyer spends in court, even if that means waiting two hours at the courthouse until your case is called. Considering that an attorney’s hourly rate can be anywhere between $200 and $1,000 an hour (or more), these costs can add up fast!
In contrast, mediation is relatively inexpensive. Both you and the other party split the cost of the mediator’s fee and represent yourselves. In a 2012 article in the Huffington Post, attorney Diane Danois estimated that a typical divorce mediation could cost between $500 – $2,500. Compare that to the cost of $32,700+ Danois estimated for litigating a divorce in court!
The beauty of mediation is that it typically only takes days or weeks. The most complex mediations may stretch to a few months, but generally speaking, you can resolve your dispute quickly and then move on with your life.
If you choose to go to court, be prepared to wait. It may take months just to get on a judge’s schedule and receive a court date. If either party appeals the ruling, it may be years until the issue is fully resolved. Just consider that for a moment – you’ll have the cloud of litigation, legal woes, and attorney’s fees hanging over you for years!
Also, the longer a case drags on, the more expensive it becomes.
A Collaborative Solution
Going to court means battling it out against the other party and trying to “win” your case.
What sets mediation apart is that it is designed to be a collaborative experience where both parties are encouraged to understand and empathize with the other and to negotiate a solution that both sides can live with. This is a much more positive, empowering, and healing way of dealing with a dispute and can also help make the process less emotionally destructive so you can move on quickly after the process is complete.
Going to court is always a risk. If the judge or jury doesn’t agree with your perspective, you could lose everything and even have to pay your opponent’s attorney’s fees and court costs.
Using the mediation process means you likely won’t “win” and get everything that you want, but it also means you won’t lose everything either. Instead, you’ll likely get some of what you want but also have to compromise in a few areas as well.
What makes the mediation process unique is that you and the other party have the power to determine the settlement you want (as long as you can both agree on it). A court may only be able to award you with money, but through the mediation process, you can address non-legal issues as well. Maybe your neighbor agrees to stop playing his music at 1 AM in the morning, while you agree to prune your tree that keeps dropping leaves onto his property. Mediation also allows you to minimize risk and control your own destiny, rather than leave the decision up to one person (the judge), or a jury of your peers.
In many cases, you will need to maintain a relationship with the other party after the mediation. Maybe the other party is your employer or is the biological parent of your children. In these cases, mediation can help you preserve these relationships instead of blowing them up by forcing the other party into court and trying to win a judgement against them.
Court proceedings are public, and those records stick around. If you get into a nasty legal battle with your business partner and take her to court, that public record will be available long after you sell your business and try to find investors for your next project.
Mediation is completely confidential and does not produce any public records or transcripts.
Higher Compliance and Better Outcome
When you and the other party work together to come to an agreement, you can both walk away feeling satisfied with the results. It is no surprise that mediation produces higher compliance than litigation and usually offers an outcome that both parties find agreeable. Even if you don’t win everything, at least you don’t lose it all, and the empowerment that comes with finding a solution together is one of the biggest benefits of mediation.
When to Call a Lawyer
There are some, non-complex case where you will not need an attorney if you choose to participate in mediation. On certain complex cases, it may be best to work with an attorney to develop your mediation strategy and to build a settlement outline you can use as a framework during mediation.
Mediation does not always work. In some cases, you and the other party just won’t be able to come to a mutual agreement. It’s also common for mediation to help you agree to some solutions while staying stuck and being unable to come to terms on other issues. For example, perhaps you and your business partner agree to sell your business, but you can’t agree on a price or who should sell to whom.
I always encourage my clients to “mediate what you can and litigate what you can’t.” Starting with mediation will save you time and money and will ensure that your resources are spent only litigating the issues where no compromise is possible.
If you need the assistance of a lawyer to help you prep for mediation or to litigate issues that mediation couldn’t solve, please reach out to my office to schedule a consultation.
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