When we respectfully request a mediator, we are engaging in an attractive form of communication because we are communicating our desire to work “with each other” as opposed to “against each other.” We are “agreeing to disagree” and maintaining a cooperative attitude, despite our differences. By agreeing to mediate, we are working to avoid lawsuits and unnecessary contention, giving ourselves many benefits compared with litigation. Nine attractive benefits of mediation are as follows:
First, mediation is a process that focuses on the future and not the past. With mediation, we do not keep “putting salt on our old wounds.” Instead, we consider ways of working together to make the future better.
Second, mediation fosters creativity in the resolution of disputes. In litigation, there is typically a winner and a loser. In mediation, we instead concentrate on a cooperative win/win strategy wherein all parties can derive benefits. We are free to choose creative solutions that the legal system simply cannot or will not afford us.
Third, mediation enables us to control the process of communication and dispute resolution. In litigation, the process is largely dictated by legal rules and procedures. However, in mediation, we are free to work together and agree on the procedures that best serve our collective interests. We—not judges—choose the time, manner, and duration of the process of dispute resolution.
Fourth, mediation enables us to control the outcome of our disputes. In litigation, the outcome is determined by a judge or a jury. In mediation, we ourselves control our own outcome. We ourselves determine the terms of our agreement. In essence, we ourselves become the judge and the jury.
Fifth, mediation promotes confidentiality in the process and outcome of dispute resolution. The process and outcome of litigation are largely open to the public. Mediation is typically a confidential process, and the outcome can be made private by the terms of the agreement itself.
Sixth, mediation facilitates settlement compliance. In mediation, we ourselves choose the terms of our agreement. Therefore, we are typically more likely to comply rather than resist because we feel comfortable with the terms of the agreement we helped create. In litigation, the judgment is imposed upon us. Most of us do not like to be controlled or have judgments forced upon us. That is one of the reasons why many cases get appealed.
Seventh, mediation significantly reduces legal fees and costs. Legal fees and costs are often unpredictable and often can even exceed the amount in dispute. At the end of the litigation process, even in victory, our finances could be “in the red.” In mediation, we typically pay for a set number of hours with a mediator at a set rate. The mediator’s fees very often tend to be a small fraction of the total fees and costs incurred in litigation.
Eighth, mediation significantly reduces opportunity costs and stress. Opportunity costs are costs we incur because we lose the time or opportunity to do something else. Litigation can deprive us of many years of our time, effort, peace of mind, and opportunity. Even if some money is left over once our legal fees and costs are paid, after adjusting for our opportunity costs and stress, we could very well again be “in the red.” In mediation, the resolution happens quickly—often in one session or one day!
Ninth, mediation allows us to maintain our personal or business relationships. In litigation, because we are adversaries fighting each other, we can severely damage our personal and business relationships—we are “working against each other.” In mediation, we are simply trying to communicate and resolve our differences amicably; we are “working with each other.”
If you are at an impasse in a personal or business dispute, consider the many benefits of mediation.
Once you make the choice to mediate, commit to the mediation process and proceed with good faith.
Communicate your desire to mediate to the other party, highlighting the fact that you would like to work together as a team.
Communicate the many benefits of mediation to the other party.
Work with the other party to jointly select a mediator you are both comfortable with.
Make sure that you select a mediator who is highly skilled in communication because communication is the foundation of mediation.