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Mediation vs Litigation

A Brief  Overview

  • Court rules are subject to different interpretations by different judges
  • Restrictions imposed by Court  rules do not apply in mediation
  • Judges and jurors are human and make mistakes and/or may not fully grasp (the importance) of all the facts with which you are familiar
  • Mediation allows you to maintain control over your case
  • Mediation is likely to be less expensive and allow you to reach finality of the matter much more quickly

If you have been involved in a lawsuit, particularly one that has gone to trial, you are probably aware that there are countless rules which judges and lawyers must follow. You may also be aware that many of the rules are subject to more than one interpretation. As a result and because judges are human and may look at the same things differently, what might be allowed in one case is not allowed in another.

If you ask two lawyers what you think is a simple question, you may, more often as not, receive two very different answer. Similarly, you may ask one simple question about the Court rules to a single lawyer and receive an answer that is so convoluted that it leaves you more confused than you were before asking the question. Quite frankly, there are rules that seem not to make any sense and which cause lawyers and lay people alike to suffer frustration and worse. Indeed, there are times when, based upon his/her understanding of a rule or prior Court decision, a  judge will not permit certain questions to be asked, not permit certain persons to testify and/or refuse to admit certain items into evidence. Often, the disallowed question, witness or piece of evidence is critical to your case. Just as often, it may seem that justice does not prevail..

In mediation at ADR, you will not experience those problems. So long as you do not speak ill of your adversary and, as a matter of common courtesy, you do not interrupt while someone else is speaking, you are permitted to say whatever you want, as loudly and using what expressions you may choose. The prohibition against making uncomplimentary comments about the other side is a matter of common sense. The purpose is solely to promote and maintain an atmosphere which is conducive to reaching an agreement. A verbal attack upon the other party is hardly likely to make him/her amenable to modifying his/her position to one that is more favorable to you.  Therefore, subject to this one limitation, when it is your turn to speak you will have every opportunity to say whatever is on your mind.

In addition, while our jury system may be the best system of jurisprudence in the world, overall providing the fairest results, it certainly is not perfect. Jurors, like the judge in most instances, often have no background or knowledge about the cases they are assigned to decide.For the most part, they know only what they are told in court. Because of the application of various rules, they may be instructed to disregard some of what they do hear. Jurors have no personal stake in the outcome of the case. This is both a good and a bad thing. It is good because they should not be predisposed to decide one way or another. On the other hand, because they have no personal stake in, the case and are not personally impacted by any decision they make, there are times when one wonders : (i) how much they pay attention throughout the entirety of a case;  (ii) whether they made up their minds  before all the evidence is presented; and/or (iii) whether and/or how much their decision is affected by whether or not they like or dislike a party and/or his attorney. Since appellate courts are generally reluctant to overturn jury verdicts, mistakes can be made and never corrected. As a result, third parties (i.e. the losing litigants) are forced to live with the burden of such results.

On the other hand, in a mediation, the final decision is made by the people who know the most about the case, the parties to the dispute. When making their decision, they can consider everything (including information that might never reach a jury). The ultimate logic of such a process is confirmed by the fact that both parties must agree upon a result which neither party considers ideal. Yet, it is one with which both parties can live. By agreeing to accept a solution which maybe something less/different than you may have originally wanted, you do avoid the possibility of having to live with a decision that may prove totally unfair and inequitable to you. It seems to be a more than reasonable trade-off.

Furthermore, unlike in court where it is almost always foolhardy not to be represented by counsel, in many mediation situations, the parties appear without counsel and thereby save additional money that can be used to either help fund a settlement or for which a credit can granted to the party making payment since there is  no need to figure in counsel fees when determining the bottom line for the person receiving payment. Similarly, much of the expense of various pre-trial procedures such as depositions of the parties and/or their witnesses is avoided by mediating instead of litigating. In addition to money, great deals of time are saved by resolving a case through mediation. This saved time can be used to earn money that otherwise might not be made. Thus, each party in a mediation has the ability to be more flexible in their demands and offers.

Next, in litigation the hearings, trials and depositions are scheduled at the convenience of either the Court, the lawyers and occasionally the witnesses. The convenience of the parties is the last thing considered. In mediation, ADR mediators schedule mediations session at your convenience. They can do this since there are generally many fewer people to accommodate. Furthermore, frequently cases tried by a judge without a jury are not tried straight through to conclusion, one day after another. Often, such cases are tried a day or two in one week; then another day or two a week or two later.Then two more days the following month. At  that rate. a case can take several months before a trial is completed and frequently additional months before the judge renders his decision. In mediation at ADR, in advance of the mediation we have an idea how much time  will be required and  are thus, subject to the parties’ schedules, are  able to schedule a matter so there is a continuous proceeding until  the case is settled.  Often, particularly in cases where there is not a multiplicity of parties, there is a resolution within a day or two of the first mediation session.

Finally, when a case is resolved through mediation, it is for all intents and purposes all over and done with. A final decision by agreement of the parties is reached, and it is rarely subject to any further action. A case that goes to trial, however, is not necessarily over when a judgment is announced. Every party has the right to bring an appeal which will extend the case’s life by a year or more, especially if the appellate court’s decision is, as not infrequently occurs, to send the case back for a re-trial on some issue.

If you are interested in resolving your dispute, fairly, relatively quickly, with finality and at a minimum of expense, then it is clear that mediation is a much better choice than litigation. Call us at ADR, and let us help you on your way to resolving your dispute.

Telephone (201) 790-3553


E-mail: mediator@affordabledisputeresolution.com