top of page
  • alecozaylaw

MEDIATION: WHY IT WORKS



Samantha Alecozay

February 7, 2022


Mediation is one of the best ways for parties in dispute to find resolution. The first thing most people think of when they imagine a contract dispute, tenant/landlord issue, or other disagreement is litigation. In reality, litigation is often the most costly, time-consuming, and ineffective option for dispute resolution. This doesn’t mean litigation is always bad, but mediation in comparison is a better option if the parties can come together in good faith to work things out. This article explains what mediation is and why you should consider it over litigation in most situations.


What is Mediation?


Mediation is a private process in which an impartial person, a mediator, encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding.[1] The mediator is not the final decision maker, unlike an arbitrator in arbitration or a judge/jury in litigation. Instead, the primary responsibility of resolving a dispute rests with the parties. Think of it as a guided negotiation, where each party can discuss their differences in a controlled and comfortable setting. In the broadest sense, mediation is about communication—communication that may previously have happened only haphazardly or may never have happened at all.[2]


Mediation can occur because the parties independently pursue it, a contract provision requires it, or a judge orders it during litigation for the parties to attempt resolution before trial. Regardless of how it happens, the actual mediation process is voluntary, even when court-ordered or required under a contract. Furthermore, anything discussed during a mediation is confidential and cannot be used at trial.[3]


Mediation can be used for a wide array of matters, even for matters not actionable through litigation. In fact, you’ve probably acted as a mediator before for friends, co-workers, and family members. Even parties arguing about who the greatest quarterback is of all time can be mediated.[4] The sky’s the limit.


Why Mediation can be Superior to Litigation


Statistics


Mediation has an incredibly high success rate. Nearly 75%-85% of all mediations result in resolution and settlement.[5] Based on the numbers, mediation works. Meanwhile, around 90%-98% of cases filed do not make it to trial (not considering probate, family court, and civil traffic violations).[6] Instead, these cases often end up settling or being dropped before ever reaching a judge/jury, and the parties end up paying extensive fees. Furthermore, pursuing litigation is a high-risk game, as no outcome can be guaranteed regardless of how “favorable” the case may seem. In fact, many lawyers consider a party’s refusal to mediate in good faith to be grounds for attorney withdrawal.[7]


Ease of Use


The actual process of mediation is simple. First, either the parties mutually agree on a mediator, or a mediator is appointed by the court. Second, the parties meet with said mediator in an informal setting to discuss the dispute. It is helpful (and expected) for the parties to submit information about the dispute to the mediator ahead of time. Still, besides some preparation, there is little the parties must do before actually attending mediation.


In contrast, Litigation often requires extensive court filings, discovery requests that can take weeks to complete, time-consuming depositions, and multiple court appearances through a formal process. Even with low complexity matters, the parties cannot escape the song and dance of litigation.


Cost and Timeframe


Mediation is a low-cost and potentially quick option compared to litigation. Mediations usually occur in increments of half-day or full-day sessions, depending on matter complexity, and run an average of $500 to $1,000 per party per half day in the San Antonio area. Often, parties can resolve a dispute within one or two sessions, depending on their willingness to resolve the matter in good faith. Meanwhile, litigation can run tens of thousands of dollars and take months, if not years, to resolve, generating significant stress and out-of-pocket expenses for everyone involved.


Remedies Available


The parties in dispute are in the best position to know what solution is right for them due to their direct understanding of the conflict and themselves as people. The parties know exactly what will or will not work for them individually, especially if the solution involves a long-term commitment. Therefore, the parties involved are often best suited to find a remedy tailored to their needs that actually works.


Additionally, the courts can only provide a specific set of remedies: compensatory, injunctive, and a few others. Of course, these remedies can be helpful, but what if someone just needs a formal apology? An amended work schedule and team setup? An alternative repayment plan? The court cannot help with these matters the same way the parties can through mediation.


Mediation is Often Court Ordered


Even if you pursue litigation, a judge will order mediation in most cases. Judges want the parties to try and resolve their differences before reaching trial. This fact raises the question: why pursue litigation first if you have to try mediation anyway? Technically, you can appear at a court-ordered mediation and refuse to participate, as mediation is always voluntary, but what do you gain from refusing to mediate in good faith? Again, you’ll end up with another round of attorney’s fees and have to take your chances in court.


There are a few instances where litigation may be preferred over mediation, such as seeking injunctive relief or dealing with a party acting in bad faith. Still, these instances are few and far between.


Less Hostility


A mediator doesn’t just moderate discussions to resolve disputes, they provide a comfortable space for open communication that offers parties the chance to say their peace. Everyone wants the opportunity to be heard. Simple acknowledgment can sometimes be enough to help smooth things over.


With litigation, there is an inherent hostility to filing a lawsuit. Once someone receives service of process or hires an attorney to file a case, the parties often feel “at war” with each other, where each party’s ultimate goal is to “win” (whatever that means to each party). Furthermore, tactics that are often used in litigation, such as prolonging filings until the last minute, denying reasonable requests, and other tricks, can lead to unnecessary frustration.


Conclusion


Now that you’ve learned how mediation works and its benefits, let us help you resolve your matter in a way that is both cost-efficient and stops time-consuming litigation. Contact us either by email at sam.a@alecozaylaw.com or by phone at 210-774-2741 during office hours. We look forward to hearing from you!

[1] TMCA Standards of Practice and Code of Ethics, 1. Mediation Defined. [2] https://lonestarlandlaw.com/mediation-in-texas/ [3] There are a few exceptions, but generally, if something is discussed at mediation, it cannot be discussed at trial. [4] As much as I hate to say it, Tom Brady is arguably the best of all time based on his record, consistency, and performance even at retirement age. [5] https://www.justice.gov/archives/olp/alternative-dispute-resolution-department-justice [6] https://judicature.duke.edu/articles/going-going-but-not-quite-gone-trials-continue-to-decline-in-federal-and-state-courts-does-it-matter/ [7] https://lonestarlandlaw.com/mediation-in-texas/


_____________________________________________________________________________


We hope you enjoyed this article. Keep a lookout for future articles by checking out our blog page or following our Facebook page to receive updates.

82 views0 comments

Comments


(210) 774-2741

bottom of page