Real estate, construction projects, contracts, and employer-employee relationships involve rights and obligations. The dispute arises when the parties disagree on any legal aspect of the relationship.
Court litigation is a traditional way of resolving civil disputes. Claiming in court often means engaging in a years-long and expensive process. In an adversarial, vindictive procedure, litigation cannot resolve the dispute at a deeper level, bringing reconciliation to the disputed parties. The parties aim at victory using all available legal means without trying to remediate the disrupted relationship.
As opposed to court litigation, mediation stands out with its simplicity, flexibility, time, and cost-effectiveness.
Mediation is an alternative dispute resolution method that has numerous benefits over litigation. The parties initiate the process by signing an agreement to mediate. Central aspects of mediation are neutrality and confidentiality. The procedure is flexible, with few rules, as the mediation should be tailor-made to the specific dispute. The neutral third person encourages negotiations in a friendly atmosphere. A retired judge, attorney, or professional with relevant expertise usually acts as a mediator.
Mediating civil disputes consists of four typical stages: introduction, opening statements, joint and private sessions. In the introduction stage, the mediator introduces themselves and presents their credentials. Attorneys for each party, in a joint session, follow with opening statements providing the other party with their perspective of the factual and legal issues. Afterward, the attorneys and parties withdraw to separate rooms for private talks with the mediator. During the private caucuses, the mediator goes back and forth between the session rooms hearing the party responses to arguments, listening to settlement options and evaluating progress toward resolution of the dispute. The private talks are confidential, meaning the mediator cannot reveal their content to the other party unless authorized. Mediators remain neutral throughout the entire mediation process otherwise trust is broken and resolution of the dispute doomed.
Civil disputes are often complex and involve witnesses, experts and documents. Litigation means going through stages of initial pleadings; motion practice; discovery of documents, including emails; deposition of parties, witnesses and experts; evidentiary hearings; trial; and appeal. Each phase comes with attorney fees and court costs. Additionally, resolving disputes in litigation can take months or years. Getting a date for an initial court hearing is sometimes challenging. Mediation is available quickly and on short notice, lessening the litigation time and expense. As mentioned, the mediation process typically has four stages, but the mediator can make adjustment depending on the specifics of each case. As a result of an experienced mediator adjusting the mediation process as needed, mediation is usually completed in a day or less. Moreover, mediator fees are known and agreed in advance of the mediation, charging by the hour or session. All in all, mediation is the most time and cost-effective dispute resolution method.
Litigated disputes are public. All you share in court becomes part of the publicly accessible record. Often television and newspaper reporters cover hearings and trials. On the other hand, confidentiality is one of the central features of mediation. The parties and the mediator oblige themselves (by signing an agreement to mediate) to keep everything revealed during mediation sessions private, which applies to potential as well as existing litigation. Parties cannot use confidential information in future or present court proceedings.
Resolving a dispute in litigation means the parties must accept a binding decision from the trial judge or appellate panel thereby having little control over the process. The disputed parties in mediation choose the mediator and have much greater control of the outcome. In fact, parties have more control over their case during a mediation rather than in a courtroom. Whether there is a mediated settlement, and the terms and conditions of the settlement, are decisions made by the party, often with the advice of their attorney.
Finally, mediation distinguishes itself from litigation because of its reconciliatory effect. Judges may not have the time to go beyond resolving the dispute, other than presiding over contested financial compensation, due to high caseloads. The parties are seldom able to continue their relationship after the litigation. Mediation is different. Relying on their special negotiation skills, mediators facilitate talks to overbridge the differences between the parties. By bringing true reconciliation, mediation enables the parties to continue their business or other relationship after resolving the dispute.
During private sessions with the mediator, the parties exchange offers and counteroffers, eventually resulting in a mediation agreement. After signing, it is binding and enforceable in court.
Choosing the right mediator makes a difference that can affect the outcome of your dispute.
Joseph P. Farina is a retired chief judge and certified Florida mediator. With a record of success mediating contract, construction, real estate, HOA and employer-employee disputes, along with business and financial controversies, Mr. Farina will offer you a unique mediation experience for your litigated dispute.