Pros and Cons of Mediation

Mediation is the settlement of a dispute between parties by the action of an intermediary, or neutral party. Participation in mediation is typically voluntary. The mediator does not render a decision at the end of mediation; instead, mediation leaves the control of the outcome ? i.e., the actual settlement of the dispute ? to the parties.

A mediator neither renders a formal opinion as to which party is correct or to blame nor gives the chances for success if the dispute is litigated. The mediator acts as a neutral party and facilitates bringing the parties with different interests together by defining issues and eliminating the roadblocks to communication.

Although mediation is an informal process compared to litigation and arbitration, there is still a process that takes place. It is as follows:

• Initial meeting or conference call;
• Joint meeting;
• Individual sessions;
• Mediation evaluation;
• Follow-up meetings or conferences if necessary; and
• Agreement (although sometimes, mediation does not always result in the successful settlement of disputes).

The pros of mediation are as follows:

• Mediation proceedings and results are private (i.e., not available to the court as a public record).
• Mediation can happen much more quickly than litigation, saving both time and expense.
• Mediation gives an opportunity to test the theories and strengths of your case.
• Each party has the opportunity to describe the dispute from his or her perspective without the restrictions of civil rules.
• Parties are given an opportunity to hear each other in a non-confrontational setting.
• Mediation is typically voluntary;
• The parties actively participate in the resolution of their dispute.
• The parties retain control since all parties must agree to any settlement of their dispute in mediation.
• Agreeing to mediation demonstrates a willingness to communicate and negotiate a solution.
• The parties, not the mediator, have the final say in arriving at a decision.
• If no agreement is reached, both parties may walk away.
• The process attempts to preserve the relationships between the parties.
• More creative remedies are available to parties in mediation than in litigation.
• It is possible to mediate without an attorney other than the mediator, who may be an attorney.
• There is the option to select a mediator who is skilled in the subject matter of the dispute and experienced in the negotiating strategy of the parties in dispute.

The cons of mediation are as follows:

• Both parties must agree to mediate.
• One or both of the parties may be completely unwilling to cooperate.
• One or both of the parties may be completely unwilling to compromise.
• Both parties must agree to a resolution.
• It is possible to get an inexperienced mediator.
• It is not a good idea to mediate if an issue of law needs to be ruled on to settle the dispute between the parties.
• It is not a good idea to mediate if one of the parties desires public disclosure of the matter to be mediated.
• It is possible to mediate without an attorney other than the mediator, who may be an attorney.
• There may be concerns about the enforceability of a mediation agreement.
• Mediation may not save time or money.

Some of the kinds of cases that are suitable for mediation include:

• Business disputes;
• Partnership disagreements;
• Contract issues;
• Leases;
• Will contests;
• Employment issues;
• Divorce (including parents with issues about children); and
• Non-violent criminal matters.