Mediation Is Cheaper and Faster Than Litigation

By Segal, Dave | Honolulu Star - Advertiser, May 20, 2012 | Go to article overview

Mediation Is Cheaper and Faster Than Litigation


Segal, Dave, Honolulu Star - Advertiser


Question: I've heard that rather than going to court, mediation is the better way to resolve disputes. If that's true, why don't more people use it?

Answer: Actually, more and more people are choosing to mediate their disputes. Mediation is appealing because it is cheaper, faster and tends to heal the rift between parties.

People who choose to "go to court" (pursue litigation) are generally unaware that there is a better alternative. Litigation has been so pervasive, they think it is the natural way to resolve conflicts, but there is nothing natural about it. When you consider other areas of our lives, collaboration and working through issues is the preferred path to achieving what we want. "Going to court" is really the unnatural way of resolving disputes.

In addition, people can become victims of their own egos. Their need to prove they are right, to be the winner, can propel them down the path of litigation.

Q: What happens to most cases that are litigated?

A: Ninety-five percent of civil lawsuits are never heard by a judge or jury and are dropped, thrown out of court or settled before trial. The image of two parties fighting it out in a courtroom with one eventually being named the clear winner is a myth. Of those cases that do go to trial, rarely is the outcome clear-cut.

And the procedure almost always damages the reputation of both parties due to the very nature of the adversary process, which is to "win at all cost." It also exacts from all sides a high toll in emotional stress, time and money.

Since cases are most likely going to be settled out of court anyway, it is much better to pursue a path of negotiation from the outset. Mediation is a "turbo-charged" negotiation that uses the services of a trained and experienced neutral third party who guides the parties to a resolution based on each party's interests.

Q: Is the outcome of a dispute different depending on whether it is mediated or litigated?

A: Yes, mediation can be better for both parties. If a case ever gets to a judge or jury, they can decide only on "who is more right" and determine the financial settlement, if any. In mediation all the "interests" of the parties, both financial and nonfinancial, are addressed. For example, apologies, future business relationships and other important high-value but low-cost considerations are explored.

Mediation doesn't strive to find who is right and who is wrong. Instead, it addresses the parties' interests and arrives at an agreement that resolves the dispute more quickly and inexpensively. Both sides can then move on with their lives. In this respect, mediation can be a much more liberating experience.

One thing to consider is that if you do go to court and the other party is found to be at fault, that doesn't necessarily mean the case is over. …

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