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WHY MEDIATE?
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You’re involved in a dispute with a key executive and would like to resolve it privately, without publicity …
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You’re enmeshed in a bitter dispute with a customer and would prefer to resolve it in a way which can best preserve the relationship …
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You’re in the middle of a lawsuit which seems to be going nowhere fast, but is resulting in mounting costs …
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You’re spending time on lawsuits, rather than focusing on business …
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Your client is seeking to put litigation behind them, but the other side continues to make burdensome discovery demands, and the motion practice has become endless …
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You’re involved in a dispute with another member of your family owned business and you would like to find a solution despite the strong emotions which are running high
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You’re in the middle of a “bet your company” lawsuit, and you’re concerned about placing that bet with twelve strangers in the jury box …
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Or, you’re involved in a relatively small dispute, which you’d like to resolve, but are concerned that the amount in dispute does not justify bringing a lawsuit …
As more and more litigants discover each day, litigation is often an ineffective and inefficient way to resolve disputes. Thus there is a trend among companies and lawyers toward
increased use of mediation.
The following is a summary of the features of various dispute resolution procedures. We believe these features are worthy of consideration in evaluating options for dealing with disputes.
Litigation
Litigation may be the right alternative to pursue in certain instances. Among its advantages are:
The litigation process, however, is fraught with unpredictability and has several potential disadvantages:
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Long time frame
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High costs
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Decreased focus on core business issues
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Emotional toll
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Damage to business relationships
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Open to the public, therefore potential publicity
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Authority transferred to third parties to make decisions
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Loss of control over process and outcome
Arbitration
Arbitration has certain benefits over litigation and can often be a superior way to deal with conflicts, which cannot otherwise be resolved. Among the benefits of arbitration are:
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Quicker resolution than litigation
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Lower costs
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Private and confidential, therefore limited publicity
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Decision Maker is usually an expert in the area of dispute
Arbitration has the following potential disadvantages:
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Decreased focus on core business issues
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Damage to business relationships
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Outcome is dependent upon third party decision maker
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Limited grounds for appeal
Do Nothing
It is often possible, particularly in smaller matters, to do nothing and hope that the other party to the dispute does nothing as well. If both parties are satisfied with the status quo,
then the do-nothing approach makes sense. On the other hand letting a dispute fester, can create longer-term problems that could be worse than the original problem.
Mediation
Mediation provides the following benefits:
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Virtually no risk
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Non-exclusive approach – may mediate at outset or during litigation or arbitration
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Very short time frame
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Confidential
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Lowered costs – since parties split the cost of the mediator, a 1-2 day mediation is likely to cost each party no more than $ 1,000 to $ 2,000.
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Greater ability than in face-to-face negotiations to work through posturing
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Assistance in identifying interests rather than positions
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Expertise in seeking fresh and creative solutions
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Ability to obtain an independent evaluation of merits of dispute
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Fuller understanding of the other side’s concerns, even if the dispute is not resolved
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Parties are in full control of the ultimate resolution of the dispute
Mediation has the following potential disadvantages:
No method of dispute resolution is perfect for each situation. Each has benefits and disadvantages. From our years of practicing law, however, we believe mediation is worth serious
consideration in most cases. |
