What is mediation?

“The entire legal profession--lawyers, judges, law professors--has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to he healers of conflicts. For many claims, trials by adversarial contests must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, and too inefficient for a truly civilized people.”

Chief Justice Warren E. Burger

Even as far back as 1776, Timothy Dwight as the President of Yale College was warning the graduates of that institution against the judicial court process. He said it was:

“that meanness... which multiplies needless litigating, which retards the operation of justice... [postpones trial to clean the last emptying of a client’s pocket]. Cost makes litigation prohibitive to many while appeals can add years as well as expense to the process. Moreover, many trials address issues that stretch the average jury’s abilities to a breaking point. Finally, the litigation process makes disputes public when often both disputants would rather handle their conflict privately. Shortcomings such as these have left many participants searching for better ways to resolve their disputes."

That better way – the way to affordable and timely justice – is often mediation and its related alternatives of non-litigation dispute resolution.

Key Points for Mediation - and to a certain extent, arbitration:

• They’re faster and more flexible - saving time and money
• 95% of cases eventually settle anyway, so reaching a solution early is more productive
• The parties - not the court - have control over the process and outcome
• Privacy of the process gives the parties confidentiality, is less destructive of relationships, saves face, and creates opportunities for greater creativity in the solution

Faster and More Flexible

Rather than waiting on court schedules and case load congestion, both mediation and arbitration allow the parties to decide, when, where and how an agreement (mediation) or decision (arbitration) will be pursued. Not only the timing, but also the structure of the non-litigation proceeding can be determined by the parties.

Control of Process

In mediation, the parties can dictate how long the process will last, the level of confidentiality; who will be the neutral, etc. In arbitration, the parties can also control the amount of discovery that will be done and how strictly rules of evidence will be followed.

Control of Outcome

In mediation, there is no agreement unless the parties decide to resolve the case. In arbitration, the parties can set parameters outside which the arbitrator cannot make an award, but the final decision is still with the third party arbitrator rather than the parties. Nevertheless, the parties have substantial control in virtually all aspects of the outcome to be eventually established.