Clients often ask, “Why should I mediate? I want my day in court!”
The answer is quite simple. Mediation is a win-win solution and the outcome of your day in court is never guaranteed.
Anyone involved in a civil dispute knows that litigation can be a long, expensive and stressful process. What’s more, you have no control over the outcome! Lawyers present both sides of the case and the outcome is up to the judge.
Mediation, however, is an interactive process. You are encouraged to participate in finding a resolution. It is completely voluntary and you are not obligated to agree to anything. The process is facilitated by a mediator, who is an independent third party. At Silverberg Law Firm, Mr. Silverberg has extensive experience in business, bankruptcy, and personal injury dispute mediation. You will be guided through the mediation process and benefit from Mr. Silverberg’s extensive experience and expertise as a mediator and a litigator.
Mediation can be used as a starting point to resolve your issue or it can be used at any stage of the litigation process. The goal is for the parties to reach an agreement that is acceptable to all parties.
So back to the question. Why mediate if you can litigate?
Mediation has advantages and some disadvantages which mainly depend on the nature of your dispute. Factors to consider when you consider mediation is whether you want to preserve the relationship between you and the other party to the dispute, whether a public trial will be in your or your businesses’ best interest, and whether you can afford the money and the time you will spend on a civil lawsuit.
Let’s look at some advantages of mediation.
- Open communication
The parties to the dispute have the opportunity to put all the issues on the table. Each side can state their case, listen to the other party and discuss the matter in a less formal and less intimidating atmosphere.
- Less time, money, and stress
You are not at the mercy of the court role for a mediation date. Mediation can usually be scheduled reasonably quickly at a convenient location. The process takes less time and is less costly than a lengthy civil trial.
- The parties control the outcome
You decide on the outcome, not a judge. Mediation is voluntary and there is no obligation on the parties to agree to a settlement. The mediator will make suggestions and offer solutions, but ultimately the parties control whether and how the dispute is resolved.
- Mediation is confidential
Unlike court proceedings, mediation is not a public process. What happens in the mediation stays in the mediation. Parties can disclose information that they might not want to disclose in court.
- Creative and flexible solutions
Each case is individually evaluated and solutions can be structured around each party’s unique situation. Sometimes all that is wanted is that the contracted work is completed, or medical expenses are covered, regardless of any admission of guilt.
- More satisfaction, more compliance
Parties are not ordered by a judge to comply with a court-ordered settlement. Parties are more likely to comply with a settlement that they voluntarily arrived at through negotiations.
Although this might not be an obvious benefit, practice shows that once the parties understand each other’s point of view, it is often easier to reach an agreement. It also promotes future understanding and contributes towards preserving the relationship. Even if the dispute is not resolved, you will leave the mediation with more insight into the strengths and weaknesses of each other’s case.
There are some disadvantages that you should consider before deciding whether mediation is right for you.
- Mediation does not always end with a settlement
Although most parties who enter into mediation do so in the spirit of reaching a settlement, it can happen that you don’t reach the desired outcome. You can put time and effort into the process and still end with no settlement.
- Lack of finality
Even if you settle, the other party can still change their mind and take the matter to court. To some, this is an advantage – they feel that if anything changes after the settlement, they can still take the matter to court.
- No discovery process
Mediation does not follow the formal discovery process of civil litigation which means that you could arrive at the mediation table without having all the facts. You could even reach a settlement without all the facts on the table. An experienced mediator however will have the communication and negotiation techniques to highlight the important issues.
Is mediation right for your case?
Whether mediation is the best option for you depends on what you want to achieve. It is not about “having your day in court”. The focus is to reach an agreement that serves the interests of both parties. Mediation is especially useful in situations where the parties would like to continue to do business together or where they want to resolve the dispute quickly and efficiently without going to court.
Remember “having your day in court” can be expensive and “winning” is not guaranteed.
If you are involved in a civil dispute, you should discuss your matter with an experienced lawyer like Mr. Silverberg. He can advise you on whether mediation is a good option in your case. Don’t start the costly and stressful process of civil litigation before evaluating all your options.
As a skilled litigator and mediator, Mr. Silverberg will be able to guide you to the best option to protect your rights and accomplish your goals.
Jay L. Silverberg is the founder of Lex Mediation Services, LLC, a full service mediation services provider that provides civil and business mediation both locally in New York and Jersey and online, and also provides divorce mediation services in New Jersey. For more information, go to lexmediation.com.