Sometimes I am asked to explain the advantages of mediation. There are many such
advantages including the following:
• Mediation can be undertaken at
anytime.You don’t have to wait for a court to be available to hear your
dispute;
• Litigation is expensive whereas mediation can be cost
effective. Court proceedings are often drawn out which increases the costs,
whereas mediation can be organised and implemented quickly and usually completed
in a day. Of course if the mediation is unsuccessful and the matter proceeds to
trial then the cost of the mediation is an additional expense for the
parties;
• The parties retain control of the outcome at all times,whereas
in the court process you are handing control to a third party and asking him or
her to make a decision(which ultimately neither party may be happy with).In
mediation, the mediator has no authority to make decisions about the issues,
however remains in control of the process;
• At mediation, a party is
able to present his or her case and hear the other party’s case at an early
stage of the matter and the process allows for commercial or lateral solutions
which may not otherwise be available;
• One of the great benefits of
mediation to participants is privacy. If the matter is resolved the parties can
put the matter behind them and confidentiality can be preserved;
• Speed-
the whole process can be organised and “done and dusted” quickly. Mediation is
quicker then litigation and this helps the parties to avoid delay and
uncertainty;
• Simplicity – the process is far simpler and more user
friendly than a trial but of course this brings disadvantages with it as well,
as the parties don’t always have the protections that a trial provides;
•
Mediation, gives parties “their day in court”. Whilst they won’t be in Court in
the usual sense, if they are listened to and have the opportunity to be heard
then they can feel part of the process and satisfied that they have been
heard;
• Litigation does not always provide a fair result whereas in
mediation the mediator is not a Judge and can assist the parties in reaching a
resolution that they are both able to live with;
• Mediation is not only
cheaper and quicker than litigation but may also save in terms of emotional
stress;
• Mediation can help to reduce long term tension and hostility
between parties and in so doing improve communication between disputing parties
which provides a benefit in terms of future co-operation, particularly where an
ongoing relationship is necessary, such as where a separating couple has
children;
• Involvement of the parties in the decision making produces a
sense of ownership and desire to see any settlement implemented;
•
Mediation is a reasonably loosely defined concept and unlike the judicial
process is not governed by stringent rules as to how and what the mediator and
parties can do. This flexibility is both an advantage and a disadvantage.
In a later blog, I will list some of the disadvantages of mediation,one
of which is that agreements reached are often not subject to the scrutiny of the
Courts and can at times be criticised for favouring the more powerful
party.
Sometimes it is necessary for the parties to travel some distance
down the litigation pathway before the matter is ready for
Mediation.
There is of course a role for litigation,however mediation can
offer very real advantages for parties in the right circumstances.
Mike
Emerson Co-Principal Brisbane Mediations
