A lawyer’s job is to fix problems, and we have several tools to use. We can ask the court to do something for you or we can apply to court to stop someone from doing you harm. We can contact the other person’s lawyer to try and spark negotiation. We can set down a trial date and have the matter heard by a judge or a judge with jury. There is a lesser-known tool: ADR – alternative dispute resolution – that can be more effective than other methods of conflict resolution. The two main forms of ADR are arbitration and mediation. This article will focus on mediation, and how this avenue is often more beneficial when we consider the mediation vs trial choice.

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Use of Mediation

There are lots of ways to describe the role of a mediator. You could call them a middleman, a go-between, or an intermediary. Essentially, it is someone who has no relation to those involved in a dispute, who can bring the parties together, hear what the issues are, and help them to resolve their conflict by encouraging compromise and broader thinking on both sides. A mediator has no “power”, in that they cannot make a judgment that the parties have to follow, but they can facilitate a settlement if the parties are willing to fully buy into the process.

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Why does an outside influence help?

People often behave differently when a neutral third party is present. Think of the Beatles’ Get Back Sessions. The Liverpool band had in-fighting when George Harrison intelligently brought in the electric pianist Billy Preston. Billy’s positive energy changed the atmosphere which resulted in two classics: Abbey Road and Let It Be. George knew that conflict needed to be resolved, and Billy turned out to be the solution.

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Billy’s very presence helped the parties to set aside their differences and focus on the task at hand – to make great art. In a legal context, engaging the services of a mediator can result in similar transformation. When people are in the middle of family law litigation, a business dispute, or estate litigation, there are strains on mental health, energy, and finances. Bringing in a mediator can help the parties to see things from a new perspective and put animosity to one side.

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Litigation can lead to frustration with court applications, constant letters back and forth between lawyers, and having to deal with the intransigence of the “other side”. The intransigence will not necessarily go away just because parties decide to mediate their dispute but setting aside a time and space to give settlement a chance can be well worth the trouble.

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Mediation– the Big Day

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Setting aside a day for the mediation focuses minds. This day does not carry the apprehension of trial because the outcome is not in the hands of a third party – a judge. Since the mediator cannot make an order or binding decision, the parties have it within their power to come to a way forward that suits them. Trial dates can be far off in the future frustrating those who want to a quick resolution of their problem. The trial process is adversarial in nature. Finger pointing and accusations often lead to deepening resentment. Mediation can help parties get out of the zero sum mentality.

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A mediation does not force a solution on anyone. The parties are free to reach their own path forward by following the mediation process steps. First, a mediator sets the ground rules, ensuring that both parties agree to mediate in good faith. Each party is offered the opportunity to present their perspective uninterrupted and before the start of the mediation by exchanging documents and proposals.  

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A successful mediation can open a new chapter for all parties and help to put structures in place to help everyone move forward. When it comes to mediation benefits, one of the major ones is that parties deal with conflict resolution in a way that prevents further harm. Especially when the collateral damage is the health of a family or a business.

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A compromise, even if imperfect, is better than a prolonged legal battle. In family law situations, the beneficiaries of the common good are the kids and the wider family. In a business law dispute, parties can put money saved into revenue-generating projects, rather than spending it on endless litigation. In a sports law context, the parties can move forward by doing what they do best; whether that’s regulating or playing the sport.

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Admittedly, sometimes mediations do not work. Dialogue can break down. Parties may not be able to get over their respective “red lines”. But even if the mediation does not work out on the day, parties may make enough progress to refine the number of issues that still need to be dealt with, which may in turn help to shorten the litigation process. For many parties, the mediation process helps them to approach the problem with a different perspective. Perhaps parties simply need more time to finish a mediation that nearly sealed a deal. Under these circumstances, the parties at least chalked off some issues from their follow-up mediation preparation checklist.

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Mediation gives agency to parties to come up with their own path out of conflict. It allows parties in dispute to reject the zero sum mentality and to realize that if they make a compromise in one area, their former spouse or business associate may allow them an opportunity somewhere else.

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Conclusion

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Parties who try alternative dispute resolution options, such as mediation, often end up with more money in their bank account, less anxiety for the future, and it leaves them in a position where that can channel their energy into their kids, their friends, and their community. Sometimes people cannot avoid court. One or the other party needs a judge to make a decision for them. But for many people, when they feel like they are in a litigation spiral and they cannot see light at the end of the tunnel, mediation can be the answer. A chance to lean on an experienced voice to get a deal over the line. A chance to put an end to the battle. To Let It Be.

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The writer has been an accredited Family Law Mediator since 2016, and other members of Carraig Law Group are embarking on their journeys to become mediators. Our team collectively has been involved in numerous successful mediations and we firmly believe in the benefits of alternative dispute resolution. If you have a legal issue or dispute and you think mediation might be the solution for you, give us a call at (778) 907-1180 to set up a free 30-minute initial consultation.

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