Mediation: What the Heck is it?
Both Google and lawyers are confused about mediation
Mediation is a process that is misunderstood by many people, including lawyers. Google the word and you will get search results for meditation, medication, and mitigation. Even Google is confused. In addition to being confused with similar sounding words, mediation is confused with related but different processes such as negotiation, arbitration, conciliation, and collaboration. Finally, to add to the confusion, there are different types of mediation – facilitative, evaluative, transformative, and directive.
Informed consumers of dispute resolution services should learn about the different types available
Because of this confusion, consumers of dispute resolution services should take the time to educate themselves on the different approaches to resolving conflicts rather than relying on advisors who may not fully understand the differences themselves. The internet provides a wealth of information on the various approaches to alternative dispute resolution. Websites such as mediate.com have numerous articles that describe in detail the different types of mediation and compare them to more traditional dispute resolution processes. In several hours on the internet, it is possible to gain a good understanding of all alternative dispute resolution services and become an informed consumer.
Mediation is superior to litigation
One hallmark of mediation is that it is voluntary, i.e., there is no subpoena power. Subpoena power is literally one of the only benefits of litgation. Alternative dispute resolution only works if both parties are willing to sit down together and talk about the dispute. If they are, and particularly if there is an ongoing relationship between the parties, any of the forms of alternative dispute resolution are likely to be superior to litigation in terms of time, cost, convenience, emotional wear and tear, confidentiality, and outcome. Best of all, the resolution of mediated disputes tends to be more enduring than that of litigated disputes. The parties have complete control of the outcome and can tailor a solution that meets their long-term needs. An enduring agreement tends to mend relationships and reduce the likelihood the parties will have future disputes.
Push back if a lawyer tells you litigation is less expensive than any form of alternative dispute resolution
If you are told mediation is more expensive than litigation, ask why. Make sure the person speaking is not confused. The best thing about mediation is that it generally works, even in very difficult situations. If that’s the case, why not try it first?