As we have discussed here previously, there are certainly obvious benefits to mediation as a dispute resolution tool. Mediation is much less costly than litigation, more private (mediations can be kept confidential as part of the terms of the settlement agreement), and can be held in a matter of days, not months or years.
Mediation is also more flexible than litigation. It permits the parties to explore more options, modify their positions, and discuss creative and flexible resolutions that might not be practical or even available in a litigated setting.
However, there are some additional benefits of mediation that may be less apparent to parties not accustomed to this form of dispute resolution.
First, mediation allows the parties to openly discuss their dispute with an experienced neutral mediator. A skilled mediator will provide unbiased, impartial assistance to both parties. Unlike a judge or even an arbitrator who might feel compelled to adhere to the law, a mediator isn’t necessarily bound by the law, and instead can help fashion a result that is practical and works for the parties involved. Since the mediator approaches the dispute without any bias to either side, both sides are equally motivated to listen to an impartial overview of their case, without fear that they will be forced to accept an outcome with which they are not happy.
Second, mediated settlements have a higher rate of compliance. This is because parties who jointly decide on a settlement are more likely to abide by its terms. Parties can customize the settlement to control the outcome of their dispute, allowing for a more customized agreement. A mutually satisfactory agreement is more likely to result in support for the settlement – often resulting in a win/win situation for all parties, and avoiding disputes down the line.
Third, mediation has a psychological benefit for both parties. Successful mediations resulting in a negotiated agreement that addresses each party’s needs are much more likely to preserve the parties’ relationship. Settling business or workplace disputes can be difficult, but a trial battle with the added stress of the court system can make it even worse. In this sense, mediation can be therapeutic and effective in the long-term, encouraging continued communication between the parties.
Finally, mediation provides a foundation for future problem-solving between the parties. After a successful mediation, if a subsequent dispute does occur, the parties are more likely to utilize a cooperative problem-solving approach to resolve their differences. They are more likely to avoid litigation and/or an adversarial approach – and will often return to the same mediator, who is familiar with the parties and the dispute, and can quickly find a resolution that works for all parties.
Mediation allows parties to re-build their relationships based on a new understanding of their dispute. It is this new understanding that promotes settlement, compliance and provides the parties with a psychological benefit. Absent some extraordinary circumstance, I believe that mediation should be considered as part of any alternative dispute resolution process.
Drew Pomerance is available to discuss your mediation needs.
