Mediation vs. Litigation

Mediation vs. Litigation

For those facing the need to resolve a dispute, they may return to the common question of whether mediation or litigation is the best option to resolve the dispute.  Comparing the two processes will often result in a lot of differences, and the types of resolution are very distinct.  However, this does not intrinsically mean that one of the options is better for the other—how the advantages and disadvantages of each process apply to certain situations is often the best indication of which system is best for a dispute.  Mediation gives the parties a chance to agree to try and resolve the dispute through collaboration, but it does not guarantee a result within a given timeframe.  Litigation will provide this result and some rigidity that other parties need, but it will often cost the parties a lot of money throughout a long dispute.  These differences can often leave parties stuck in trying to understand what the best option for their dispute is.  

The decision to choose one or the other is often a question that turns on a variety of factors, such as the focus of the dispute, the discretion needed, or a specialized subject matter that requires specific knowledge.  Understanding the factors that go into this decision by comparing and contrasting the systems and evaluating the pros and cons of each system will help parties make the best decisions for the dispute at hand.  This article will define litigation and mediation, discuss the similarities and distinctions between the systems, and outline the benefits and disadvantages of choosing one system over the other.   

Mediation and Litigation Defined: 

Before diving into a comparison between litigation and mediation, let us first define the terms.  These definitions are bare-bones; however, other aspects of these systems will be drawn out as the two are compared and contrasted below.  

Mediation: 

Mediation is the process of resolving a dispute through a formal negotiation process, usually in a roundtable setting.  It often involves two opposing parties, although there can be more parties and opposing legal stances. This process is voluntary and private and the parties have some control over the venue and mediator. These disputes are often about how to resolve a question of liability or how to partition the money at issue in the case. The mediator does not decide the case but instead helps the parties try to reach an agreement on the dispute. The outcome of mediation will be a settlement agreement that resolves the dispute, or it will end with the parties agreeing that the case will not settle at mediation and needs to move on to other resolution options.  

Litigation: 

Litigation is the process of resolving a dispute through the courts, or a public system.  It often involves two opposing parties, although there can be more parties and opposing legal stances.  These disputes often focus on the enforcement or defense of a legal right.  The parties have very little control over the particulars of the litigation, such as the timing and the venue.  Cases that go through litigation are decided by a judge or a jury. The outcome of litigation is called a verdict or decision.  

Litigation v. Mediation: Similarities and Differences: 

Mediation and litigation are often set at odds with each other, and it is understandable when evaluating the differences.  Yet these differences between the two systems allow savvy litigants to choose the best venue for their dispute.  The similarities and differences provide a window into the factors that will need to be considered as the parties decide whether litigation or mediation will be the best option for their dispute. 

Similarities: 

  • Representation: Most of the time, the parties in both mediation and litigation are represented by lawyers who plead their case in some capacity. However, it is more common for parties to be unrepresented in mediation than in litigation.  Litigation often involves a structure that makes it beneficial to have representation.  

Differences: 

  • Structure of the Hearing: The structure of the hearing will be different in litigation than in mediation.   In litigation, the parties will present their case, the decisionmaker will consider the evidence presented and legal arguments, and then there will be a verdict or judgment.  In mediation, the parties will present their case, but then they will discuss the case and possible settlements until they reach an agreement.  
  • Cost: Mediation is often significantly cheaper than litigation.  Litigation will often have lower fees for filing and proceeding with the case, but the cost of lawyers is fairly prohibitive for most litigants.  Both mediations may have higher fees, but they move faster and use less attorney time, usually making them cheaper. This is best observed in complex cases and is not much of a difference in short and straightforward cases.     
  • Control: Mediation allows the parties to have a greater amount of control over the proceedings and the outcome of the dispute.  Mediation is fairly party-driven, which means that the mediator is sensitive to and responds to the needs of the parties.  Litigation is overseen by a judge and is scheduled with a structure and rules that drive the way the case proceeds.     
  • Selection of the Neutral: The neutral is the person that will oversee the proceedings. In mediation, the parties have the opportunity to either choose the specific mediator, or they can choose the process that will appoint the mediator.  In litigation, the parties are assigned a judge based on availability and are required to use that judge unless there is a conflict or they would like to remove the judge.  However, a party will not have the ability to pick which judge they would like.  
  • Speed: Mediation is often a fairly quick process because the parties can arrange mediation and complete it on their own time with the mediator.  Litigation is at the mercy of the courts and the scheduling system, which means that the case will often be delayed and drawn out while the court systems attempt to fit it within their already overwhelmed schedules.   
  • Equitable Results: While it is not always the case, mediation leaves open the possibility of an equitable result that would not be possible in litigation.  Mediation allows the parties to create their own result to the dispute, many of which are not available to litigants, that benefit both parties involved. Litigation has rigid relief that needs to be requested and authorized by the rules to be granted, and this often involves very one-sided relief.  
  • Privacy: Mediation is a confidential process. The parties agree that was is shared in mediation cannot be shared elsewhere.  This ensures that the topics and facts discussed are kept within the mediation.  Litigation is a public record. The parties’ filings and disputes will be available to find through court records, which can be harmful, especially in cases with sensitive information like divorces and harassment cases.  
  • Role of Attorneys: In mediation, the role of the parties’ lawyers may be limited. Lawyers may assist in presenting the case, but neutrals often appreciate allowing the parties to have a voice in the process when using mediation. In litigation, the parties are often the ones controlling how the case is presented.  
  • Flexibility: Mediation is rarely binding on the parties unless there is an element of arbitration added to the mediation agreement. On the other hand, litigation is binding, meaning that the parties will need to follow the court order.  However, parties can appeal a decision made in litigation to another decisionmaker and hopefully revise the order. 
  • Decisionmaker: Unlike mediation where the parties are responsible for coming up with a solution to the dispute, in litigation, the decisionmaker issues an order about the dispute that the parties can or have to follow.  
  • Formality: Litigation is often more formal than mediation.  Because litigation involves the presentation of the case and a decision issued by a judge or jury, there are certain rules and procedures that the parties will need to follow.  Mediation is more often relaxed and a discussion rather than a presentation.  
  • Finality: Litigation produces an order that may be appealed, but it will be a final decision otherwise.  Mediation produces an agreement that should be followed; however, the parties may be able to modify or remove the agreement if it does not work for them any longer.  

Looking over this comparison, mediation and litigation are really quite different in how they approach a resolution.  It is important to consider the differences and similarities to find the advantages and disadvantages of the systems when deciding how to resolve a dispute. 

Advantages and Disadvantages of Mediation: 

There are some great advantages to choosing to use mediation, but there are also some disadvantages.  Mediation is often cheaper and faster than litigation, but it does not produce a guaranteed result, and some parties struggle with the structure.    

Advantages: 

  • Control: Mediation allows the parties to have total control over the resolution of their dispute. They can choose the mediator and the process, and they are responsible for resolving their disputes with each other.  When arbitration or litigation happens, the parties hand the decision over to another party.  
  • Collaborative: Mediation is a collaborative process, requiring the parties to come together and create an agreement that works for them.  This can help the parties strengthen or develop their relationship and encourage the parties to remain cordial throughout.  

Disadvantages: 

  • Finality: Mediation does not produce a guaranteed result. This means that after mediation, the parties may have resolved their case with an agreement, but they may leave without any resolution and need to find other ways to resolve their dispute.  
  • Unstructured: Much of the mediation process is unstructured and relies on the parties.  This can be difficult in some cases when the parties need more direction to be able to resolve their dispute.  Some parties are unable to create their own ideas for resolution, and mediation may not be the option for them.  

Advantages and Disadvantages of Litigation: 

As evidenced above, there are some great advantages to choosing to use mediation, but there are also some disadvantages.  The same is true for traditional litigation.  Litigation is often more expensive and time-consuming, but it often allows the parties to fully flesh out their issue and allow a third party to decide.  

Advantages: 

  • Evidence Rules: When a party needs to limit the evidence that the other party has, litigation can be a good way to limit what is allowed based on the evidence rules that are allowed.  
  • Unilateral: A court case may be filed without the agreement of the other party, allowing one of the parties to bring the other to court regardless of their desire to be in court. 
  • Precedent: Because court cases set a precedent, the decision will allow subsequent cases to be decided similarly.  Establishing a precedent will give the parties a certain level of predictability. 

Disadvantages: 

  • Inability to Choose the Decisionmaker: Parties to litigation are usually assigned a judge and/or a jury to decide the case.  The parties may end up with a judge or jury that is less sympathetic to their claims.  
  • Expensive and Time-Consuming: Litigation will often take much longer than arbitration to conclude, which increases attorneys’ fees and other costs associated with the court. 

Conclusion: 

Choosing to use litigation or mediation is not an easy decision.  And it is not true that one option will always be better than the other.  Sometimes, the finality, rigidity, and enforceability of litigation will be the best option for the case. Other times, the parties will need the control and collaboration that mediation provides. When comparing the two, the answer to whether litigation is better than mediation is the tried and true lawyer answer—it depends.  

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