Mediation is one of the available alternatives to civil litigation, which is constantly growing in use. Currently, it is proving to have higher settlement rate than most other ADR procedures.
In comparison to a trial, mediation involves the clients in the process and thus provides for higher client satisfaction with the outcomes. Further, it achieves results more tailored to the priorities of the participants.
There are a number of features of mediation which make it an especially attractive alternative to litigation.
Firstly, clients are interested in mediation because it provides for their better involvement in the process. The participants are required to speak for themselves, explain their positions and even talk about their feelings.
In comparison once a case goes to court, the client rests his case in the hands of his barrister and is completely reliant upon him. In the courtroom, the physical arrangement excludes the parties from the litigation process requiring them to sit at the back behind their barristers and solicitors even though it is their lives and problems at stake. Further, all the conversations take place solely between the barristers and the judge and the proceedings are concerned with legal criteria as opposed to emotions and needs.
In court, the client’s voices are heard through the lawyers therefore, the power rests exclusively with them.
In contrast, when mediation takes place the clients are the ones effectively in the spotlight. The process is more informal and relaxed. The clients are the ones doing most of the talking, expressing their feelings, concerns and needs.
Taking into consideration the atmosphere of a mediation process, the clients are all on the same level, sat side by side to their legal representatives and are directly facing their opponent. Further, the participants have an opportunity to address each other which proves to be more satisfactory for the parties than court proceedings.
While there is no judge to apportion blame at the end of the process, the mediator regulates the process without taking sides and in that way allows the parties to come to a suitable solution themselves.
The mediation process if successful can mean complete end of the proceedings in question. Therefore, it could resolve all issues without the need of going to court and wasting time and costs in preparation of the case and a full hearing.
Further, the parties together cover the costs for the mediation and therefore no one is ordered to pay the full sum including the costs of the other party unless they themselves agree to that effect.
While courts can grant injunctions and decide which side wins and which party is the loser, the mediation process does not focus on finding fault in any of the parties. In addition, there is no strict timetable for mediation so the facilitator is free to conduct the process in accordance with the individuals involved.
Further, a mediation settlement is reached by the parties themselves with the assistance of the mediation rather than imposed on them by a judge.
Therefore, it is more flexible and it dwells further into the issues of the case considering also the feelings of the participants and the different remedies they could possibly want. As a result, the mediation process could provide a more and suitable outcome taking into consideration all the facts of the case.
For example, mediation can result in a written apology, a promise for something to be done or not done, replacement or repair of something owned etc.
On the negative side, if no settlement is reached through the mediation, it accumulates costs as it is adding the mediation costs on top of the current costs accumulated by the parties. Following failed mediation, the case could still go to trial costing the parties even further.
However, in practice even if mediation has been unsuccessful, in most cases the parties settle shortly afterwards through negotiations or other means of ADR. Therefore, it is only a very small percentage of the cases that effectively double the costs through going to mediation. Even then it is proven that the mediation has helped the parties establish the main issues between them and possibly resolved some of the disputes.
Another characteristic of mediation which is considered by some as unsatisfactory is that in the process no fault is determined. Therefore, it does not provide the same feeling of success as experienced by the winning party in court proceedings.
Further, the parties are giving away their day in court where at the end a judge decides fault and liability. They are giving up an opportunity to have a public recognisance that they were right or they had been wrongfully treated.
Nevertheless, successful mediation is described by some as achieving a win-win situation which could rarely be the result of court proceedings.
As another negative, a party may agree to participate in mediation without the intention to settle but for the sole purpose of learning more about the other side’s case. Although the whole process is without prejudice, a tactical legal representative could still use the opportunity to ask questions as to test the other side’s case and identify weaknesses to exploit in the later stages of the proceedings or in court.
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