Popular culture often glamorizes the messy divorce where battling spouses (and their high-priced attorneys) fight over every detail like it’s World War II. But divorce and other types of highly personal disputes, such as contested wills, are frequently best settled through far less hostile mediation. As an alternative to litigation or arbitration, mediation offers parties greater control at a lower cost.
How Is Mediation Different Than Arbitration?
You may be confused by the two terms. Don’t be. Arbitration is similar to litigation in that an impartial third-party determines how your conflict is resolved. An arbitrator is similar to a private judge. Both parties provide information about their disagreement to one or more designated arbitrators and agree to accept whatever decision is made as final and binding. You participate to the extent of the information provided but turn over resolution of the problem to the arbitrator.
In contrast, mediation is a non-adversarial process where the third party—the mediator—serves as a facilitator. The mediator is not there to make any decisions, including if someone is right or wrong. The mediator’s role is to work with the parties to reach agreements that resolve their differences and assist them to better manage their difficulties with each other. Mediation is confidential and voluntary, providing a forum for parties to discuss issues, clear up misunderstandings, identify mutual and separate interests, and determine areas of agreement.
How Is This Better Than Litigation?
Perhaps the greatest benefit to parties of mediation is control. In litigation you are subject to the mercies (and schedules) of other people. Litigators may have dozens of clients. Judges have crowded dockets and will get to your case when there is space on the calendar, regardless of your timing needs. With mediation, you and the other parties can determine when, where and how to proceed.
In litigation you are also subject to evidentiary and procedural rules (what information the judge or jury actually looks at in deciding your case) as well as applicable law (other cases that have been decided that the judge has to follow and laws that have been passed by the legislature). How your case may turn out is often anybody’s guess. With mediation, you decide how your case turns out, what is important to you and what you are willing to let go.
Litigation also discourages communication between parties that might prove essential to resolving disputes and/or may be critical for ongoing interactions. This is particularly true when people are likely to remain in contact with each other, e.g. divorce and parenting issues, handling the death of a family member and distribution of property, or neighbor disputes. The mediation process is aimed at putting together workable and creative solutions that parties choose to implement because the parties have thought through and discussed how to deal with the issues. A mediator is most interested in seeking solutions versus prolonging arguments.
There are also privacy concerns, which may be especially important in a sensitive matter like divorce where children are involved. Litigation is generally a matter of public record.
Although some aspects of a case may be shielded from public scrutiny, once you’re in court, everyone becomes privy to at least some of your business. Mediation offers a confidential setting not unlike any normal contract negotiation. It’s a private matter among the parties.
Ultimately, mediation frequently saves parties time and money. And by working out things for themselves—with the mediator’s assistance—there’s a greater likelihood the final resolution will satisfy all parties, not just one side.
But Won’t I Just End Up In Court Anyway?
There are never any guarantees with mediation, or any form of dispute resolution for that matter. Arbitration and litigation often produce years of arguments and legal bills. Mediation may not work for everyone, but it offers a low-cost, low-risk alternative for individuals seeking to craft their own solutions and have a speedier resolution of their differences. If you’re interested in the services of an experienced Colorado mediation lawyer, contact Kate Boland of Boland Law and Mediation at (303) 562-5973.