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Mediation as an Alternative to Litigation

Often, when you really need to resolve a dispute with a neighbor, employee or family member, the legal process only makes things worse. Mediation is an effective form of alternative dispute resolution, allowing you to work cooperatively to find a mutually beneficial outcome. A few states mandate mediation in certain circumstances, but it is generally a voluntary process.

The Difference between Mediation and Arbitration

The key difference between mediation and arbitration relates to the role that mediators and arbitrators assume. An arbitrator functions much like a judge, taking testimony, evaluating evidence and rendering a decision. Conversely, a mediator is a facilitator, an intermediary between the parties. The goal of the mediator is to help the parties work together to identify and implement a solution that works for everyone. Because the outcome is not dependent on the facts or legal arguments, the mediator typically does not consider physical evidence or take testimony from witnesses. Only the parties to the mediation will participate.

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The Benefits of Mediation

The mediation process offers many benefits over litigation, including:

  • Greater involvement in the outcome—The parties to mediation can propose any outcome, and can also reject any proposal by the other party. They don’t have to depend on a third party (the court or the judge) to determine the outcome.
  • Disputes can be resolved more quickly, with less expense—With mediation, there’s no need to engage in expensive discovery, such as depositions or document requests. In addition, parties don’t have to get in line with everyone else on the court’s docket, and can often resolve disputes with a single mediation session.
  • Disputes can be resolved more amicably—In situations where you need to maintain a relationship with the other party (a neighbor or family member), mediation avoids the bitterness that is common to litigation

The Mediation Process

Once the parties have elected to use mediation to settle their differences, they select a mediator, and agree to the time and place for the mediation (often the mediator’s office or some other neutral location).
The mediation process then moves through the following stages:

  • Mediator’s opening statement, where the mediator fully explains the process, the goals, and the respective roles of all parties
  • Disputants’ opening statements, where each party has the opportunity to tell his or her story without interruption
  • Joint discussion, where the mediator and the parties identify all the issues that need to be resolved, and identify those upon which there may already be agreement
  • Private caucuses (if necessary), where the mediator meets individually with one of the parties, identifying specific needs and working to move the party toward a solution
  • Joint negotiation, where the parties openly discuss what they need and what they are willing to give in exchange
  • Closing, where the mediator reiterates the agreements of the parties and discusses how the process will move forward

If the parties agree on a solution, the mediator summarizes the agreement in writing. Each party signs the written agreement and may have an attorney review it. The parties also may create and sign a legally binding contract.
If the parties do not reach an agreement, the mediator reviews the progress made, and the parties can meet again at another time, arbitrate or go to court.
Civil disputes commonly resolved through mediation are contracts, consumer- and car-accident claims, employment claims (e.g., wrongful termination, discrimination, sexual harassment, ending a partnership), landlord–tenant disputes, real estate disputes and family law disputes.

To see Resources for Further Research on Arbitration and Mediation, click here.

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