One of the advantages of Mediation is that it is less likely to harm on-going relationships than litigation. This is particularly important where people in dispute need to maintain an ongoing relationship - commercial arrangements between suppliers and customers; parenting relationships between separated parents who have parenting responsibilities to fulfil; or working relationships between co-workers who have clashed in the workplace.
Mediation is a process where disputing parties enlist the assistance of a neutral person (the mediator) to help identify issues in dispute and explore options and alternatives to reach an agreement that will accommodate their respective needs.
Litigation on the other hand involves parties using courts to review opposing factual versions of disputes and provide a decision based on the evidence provided by each side (in their affidavits or stories) of the dispute. The decision almost always effectively endorses one view of a case and rejects the other and often costs are awarded to the successful party, effectively punishing the other.
Litigation by its very nature highlights and accentuates differences – as presented in affidavits and as each counsel cross examines the other party to expose weaknesses in their version of events. Mediation , on the other hand, looks for common ground and strives for agreement.
Litigation encourages a winner take all approach whereas Mediation looks for a win/win outcome.
Considerable damage can be done to on-going personal relationships (for example, between parents or between beneficiaries under a will) where one person, in seeking to have his or her version accepted, has to try to destroy the other person’s case. Similarly, in the commercial field, time in court is highly unlikely to engender an ongoing relationship - particularly when at the end of the day one party is the victor and the other the vanquished, left to pick up the pieces.
When a result is imposed by a court, one party may leave the court room happy and the other disgruntled and bitter. Evidence given during the trial has most likely eroded the previous relationship even more and increased the chance that these two parties will struggle indefinitely to relate into the future –personally or commercially as the case may be.
At Mediation , however, seemingly warring parties often shake hands or communicate in a genial manner at the end of the day, with a copy of the signed agreement in hand as they head off. A result has been reached by consensus rather than by the imposition of a decision by a stranger. Dignity has been maintained and the vestiges of a relationship remain intact with a chance of enrichment in the future. In the commercial arena there is every chance that the parties will continue their mutually beneficial relationship, particularly where they have found a solution which ultimately takes account of and accommodates the needs (often different from the wants) of each.
It is easy to see why Mediation is often said to involve a saving, not only in material costs, but also in costs to relationships.
Mike Emerson
Co-Principal Brisbane Mediations
