Mediation as a Solution in Place of Litigation
Uploaded by drinksbeer on Jan 06, 2005
Mediation as a Solution in Place of Litigation
We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorneys fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.
Mediation means many things. Often the different meanings are in harmony and improve each other -- which is why so many family and other disputes involve co-mediators. However, successful mediation in all of its guises requires several factors to make it work and to ensure that it remains the "something better" that the public has come to think mediation really means (Managing Conflict Through Mediation 21)
Mediation is a facilitative process in which disputing parties engage the assistance of a neutral third party who acts as a mediator in their dispute. The neutral has no authority to make any decisions which are binding on them, but uses certain procedures, techniques and skills to help them to negotiate a resolution of their dispute by agreement without adjudication (ADR Principals and Practice 108).
The term "mediation" is often used interchangeably with "conciliation"; sometimes, however, mediation is understood to involve a process in which the mediator is more pro-active and evaluative than in conciliation; and sometimes the reverse usage is used: there is no national or international consistency of usage of these terms.
Mediation differs from arbitration in that the role of the neutral third party in arbitration is to consider the issues and then to make a decision which determines the issues and is binding on the parties. The neutral third party in mediation does not have any authority to make any decision for the parties, nor is that the mediator's role or function.
Even where the mediator expresses a view about the merits of the dispute, which may happen in some but not other models of mediation, this would only be a non-binding opinion, and in no circumstances would a mediator have the power to impose this view on the parties. Indeed, any such power would be contrary to the spirit of mediation, which is inherently consensual (ADR Principals and Practice 109).
Use of the term "mediation"...