As the cost of litigation has increased, and the delays to even get into the courtroom have become longer, mediating disputes has become more popular. Mediation is a process in which the interested parties hire a professional (often a lawyer, realtor, accountant, etc. depending upon the dispute) to help the parties resolve the dispute. Generally neither party is compelled to participate (although sometimes there is coercion in terms of at least attempting mediation or suffering the loss of attorney fees in later proceedings), and the process can end in no agreement, in which case generally arbitration or litigation follows.
In my experience, mediation can lead to excellent results in a variety of ways.
First, the mediation session is generally a few hours to a few days, and is entered into with far less motion practice, evidence gathering, securing attendance of witnesses, etc. than a trial, which makes the process far less expensive. Since the cost of litigation, and who will pay for it, are major impediments to settlement later in the process, early mediation is often the best time to settle the case.
Second, mediated results are arrived at by all the parties. Nothing happens until all parties agree, and sign an agreement to resolve the dispute. The result is not dictated to the parties by a judge or arbitrator, and all parties leave the process with their pride intact.
Third, the mediation process is more flexible. While a trial generally ends with a dollar amount verdict, generally leaving at least one side, and often both sides, disappointed, mediation results can be tailored to fit the parties’ situation. In business settings, this can mean contracts continuing, paying off damages in future performance, securing debts with assets, agreements to modify behavior to allow companies to work together, etc. In marital dissolutions, I have seen lump sum settlements arrived at to finance a business or fund education, making both parties self sufficient and eliminating claims for spousal support, and cooperative parenting time schedules that really work for the parties and the children as opposed to court-mandated schedules which work moderately well for the masses. Even creditors and debtors can explore stipulated judgments, notes and security, and payment plans which would not be available in the courtroom.
The amazing thing about mediations is that often the crucial issue is not the one expected when you arrive, making “win-win” situations possible. Mediators are trained to consider all the options.