For seven years, Vietnam Veterans and manufacturers of Agent Orange battled in court over whether the chemical had injured the Veterans and how Veterans would be compensated for those injuries. After failing to reach a resolution, the case was taken to mediation. The mediator, Kenneth Feingold, brought the parties to a resolution in just six weeks.
How long mediation lasts mainly depends on how many people are involved and how many issues are at hand. In Small Claims Court a matter involving two people and one, two or three issues might take months if not years to resolve. A skilled mediator can help resolve the issue in about two hours.
It almost goes without saying that matters that are resolved quickly and correctly are also resolved for less money. Rather than paying for two lawyers, filing fees, deposition fees, and the costs of time and energy that come with battles in litigation, parties to a mediation can split the cost of one mediator and avoid all of the costs that litigation demands.
Additionally, because the parties control the process and the outcomes, it is more likely that the parties will be satisfied with the agreement and stick to it. This significantly lowers the chances that the parties will end up back in court either because one party is appealing an unfavorable decision or because a party violated the court’s command.
If you don’t want the whole world to know your business, mediation is probably for you.
What happens in court is a matter of public record. This means that anyone on earth can look at the complaints and responses that are filed in court. Transcripts of the trial and of depositions that are filed with the court are also matters of public record. In fact, with some limited exceptions, anyone can attend your trial.
The intimate details of your divorce, the “unfortunate” statements business partners might make about each other, the salacious accusations from your neighbors, the nasty claims about your character from a disgruntled client or contractor, all of this is readily available to anyone who wants to see it.
Mediation is private and confidential. Nothing that is said in mediation may be made public without an explicit agreement from the parties. The mediator is strictly bound to confidentiality even if the matter should later go to trial.
What really matters to you? Most people want to be heard. In Mediation everyone has the right to be heard
In litigation, the lawyers and judges decide what is important based on the rules of evidence, the rules of civil and criminal procedure, legal statutes, and legal precedent. None of this is based on your needs or wishes. You cannot speak for yourself. Instead, you become a witness. How fast an issue is resolved is often taken out of your hands and left to the mercy of the adversarial process. Costs quickly add up and the underlying reason for going to court becomes buried in paper work and procedure.
In Mediation, the parties control the process. They decide what is important, what will be addressed when, whether they speak and what they say. The parties control the issues. Unlike litigation, parties in mediation can acknowledge anger, insults, moral and ethical issues, intent, and the impact that the parties’ behaviors have had on everyone involved. In Mediation, the parties can apologize without admitting liability. The parties can reach agreements that speak to the needs and interests of everyone involved. The parties create their own agreements based on what is truly important to them. Nobody has to walk away feeling that they have not been heard.
In every case that is decided by a judge or jury, someone wins and someone loses. If you go to court you face the real possibility that the loser will be you. A significant number of cases are lost on the basis of legal technicalities. It is highly possible that whether you are right or wrong doesn’t matter, what matters is whether you had the funds to hire a better lawyer.
Mediation is not about winning and losing. Mediation is about solving problems. When parties collaborate and a problem is solved, everybody wins.