Why Litigate when it can be Mediated?

“See you in court!” is a threat that is sure to ring the death knell on any relationship. Once a matter has reached litigation, it is unlikely that the adversaries will ever get together to create anything of value, either personal, social or commercial.

This being the case, as a mediator, I have always wondered why there is a need to litigate at all when a majority of disputes can be resolved through mediation. Moreover, most countries today recognize mediation as the first step in dispute resolution before proceeding to arbitration or litigation. Lack of awareness of the benefits of mediation appears to be the main reason for it still falling behind as a means of dispute resolution.

Therefore, I thought it would be useful to spell out here the numerous advantages of mediation. Hopefully, this will act as motivation to consider mediation first before other forms of dispute resolution.

Continuing Relationship:

If there is even the remotest possibility that the relationship between the parties can be restored for mutual benefit, they should consider mediation as the first option. Unlike litigation where the principle of ‘winner takes all’ prevails, there is no victor and vanquished in mediation. It carves out the pie equitably in line with the strength of each party’s case and considering what is most important to either of them. Since the decision is arrived at jointly and after pooling ideas and suggestions together in a non-adversarial manner, the very process leads to mending of the relationship. This ‘value-preserving’ nature of mediation is what makes it superior to litigation.

Time and cost savings:

It is often said that the wheels of justice grind slowly. Due to a variety of reasons ranging from frivolous litigation to shortage of judges and multiple opportunities for appeal, legal cases take an unacceptably long time to be finally settled. Justice delayed is justice denied, goes another saying. As compared to this, mediation can be concluded in a fraction of the time and with far lower costs than litigation. This factor itself is enough to prompt disputants to consider mediation as a first step to resolve a matter.

Mutual Choice of mediator:

The parties can mutually select a suitable mediator. They can also approach institutions that empanel such professionals to nominate the appropriate, neutral person for a specific dispute. The person need not necessarily be a legal professional, though an understanding of the relevant laws would be an advantage. In fact, mediators come from all walks of life, from marriage counsellors and psychologists to accountants, engineers and other technical streams.

On the other hand, litigation revolves around legal personnel and points of law, often to the exclusion of social, personal and commercial interests. The selection of the judge is not in the hands of the litigants nor is the outcome of the judgement.

Mutually agreed decision:

The mediator, whether he is a more active evaluative one or a relatively passive facilitator, does not arrive at any decision without the explicit concurrence of the parties involved. Unlike legal judgements which are thrust upon the litigants, mediation agreements become binding only when they are jointly executed by the parties.

Sharing the gains:

As mentioned earlier, a mediation agreement identifies the most important outcomes for each party and tries to maximize this aspect while compromising on others which may be more important for the counter-party. Thus the mediation process focusses on the genuine ‘interests’ of each party and shifts attention away from the ‘positions’ each one adopts to further those interests. By doing so, mediation agreements are able to achieve what legal judgements cannot – a ‘win-win’ outcome.

Confidentiality:

A key concern of most disputants is that any compromise that they make in a mediated settlement will work against them in the event the matter is later escalated to the courts. Thankfully, mediation proceedings are not admitted as evidence in courts in most jurisdictions. The proceedings are also not bound by laws that bind legal proceedings like the laws of evidence and civil procedure.

Regulated environment:

Another concern expressed against mediation is that it does not provide a regulated environment like the courts. If mediation discussions reach an impasse, the disputants fear that they would be left high and dry. This need not be the case as today, there are recognized institutions with well laid-out regulations and codes of conduct that oversee the performance of mediators and other neutrals in the field of alternative dispute resolution.

Given these tangible benefits of mediation, it is only a matter of time that it becomes a preferred means of resolving disputes.

At Goldklix Business Services, we help you get irritating disputes out of the way, with minimum damage and least cost to your relationships and let you get on with building your business. I am an accredited mediator from the Indian Institute of of Arbitration and Mediation. Get in touch today.

Check out my profile at https://www.arbitrationindia.com/viewprofessional.php?id=196