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Litigation With A Positive ROI
Mediation: how it works and why you should try to make it work
The use of mediation and other forms of dispute resolution are increasing as people become aware of how it can help settle disputes quickly and inexpensively. People are using mediation over litigation for all types of disputes because it is generally less expensive, allows the parties to maintain control, and the information disclosed and the results of the mediation are confidential.
How Mediation Works
Mediation is a non-binding method of dispute resolution that requires the parties in dispute to communicate and create their own solution. Accordingly, mediation is completely voluntary and any party may choose to opt out at any time. The parties, rather than a third party (judge in litigation), create and agree to the solution. The mediation sessions are confidential and can be short, long, many, or few depending on the complexity of the issue and the parties’ willingness to communicate openly and agree on a solution.
Mediators do not generally act as therapists or judges, but seek to facilitate negotiations by encouraging complete communication and consideration of all the information, potential options and outcomes. A good mediator will ensure that all parties share information and that all interests of the parties are stated. They may also present legal information in a neutral way to help the parties understand completely the potential outcomes and consequences to other forms of dispute resolution. During mediation, before agreeing on a resolution, a party may seek advice from an attorney or friend to ensure they have a sound understanding of the solution and the effects it may have.
At the conclusion of the mediation sessions, a written agreement is drafted reflecting the negotiated settlements. Although the mediation settlements are not generally binding, parties are more likely to abide by the decisions because they participated in crafting the solution and voluntarily agreed to it. And because the solution is the result of balancing the interests of the parties, parties are often able to maintain a better relationship than after the litigation process.
Benefits of Mediation
Mediation presents several benefits absent from litigation. Consequently, more and more parties are resolving their disputes via mediation. First, because mediation does not involve all the hassle of litigation, it is often less expensive and less time consuming. Litigation involves court hearings, depositions, filing motions, court conferences, and other necessary procedural steps. Mediation only requires the cost of a mediator and the time it takes for the parties to come to a resolution. Further, mediation is confidential, thereby preserving privacy and encouraging resolutions that balance all the parties’ interests, not just one-sided outcomes. Consequently, if the parties are willing to participate, mediation is often the best solution.
Another reason people choose mediation over litigation is because mediation allows the parties to maintain control over the final result when resolving the dispute. The goal of mediation is for the parties to work together to create their own solutions, acceptable to both parties. The primary remedy in litigation is an award of money to the “winning” party. When determining the resolution, the judge does not take into account what is affordable or desirable to the losing party. Conversely, mediation allows for whatever solutions the parties devise and agree upon. Mediation also allows for the balancing of interests among the parties, rather than a “winner take all” scenario. Because mediation encourages each party to fully express their views, and because it allows the parties to control the outcome of their dispute, parties are more often satisfied with the process and results of a mediated, rather than a litigated, settlement.
Mediation also offers flexibility, convenience, and confidentiality. When parties decide to participate in mediation, they also select the forum and time of the mediation session. The parties are not waiting for court scheduling or burdened by the court appointed times of the litigation. All parties can also be assured that the information presented and the solutions reached are confidential. This allows the parties to be in a comfortable and convenient setting that encourage a collaborative, less adversarial experience. The result is quicker resolutions and mended relationships with increased future communication. Mediation thus is attractive to parties that have relationships that will continue after the resolution, such as family and probate disputes.
Because mediation is often less expensive, less time consuming, provides lasting results, tends to preserve relationships, and allows the parties to have more control with the decisions, as long as the parties are willing, it may be the best option. Our Arizona litigation attorneys at Gunderson, Denton, and Peterson PC can answer any further questions you have with mediation and other means of dispute resolution.
Written By Brad Denton
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
40 N. Central Avenue, Suite 1400-1532
Phoenix, AZ 85004
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