Mediation v The Court or ‘Don’t Give Yourself to The Dark Side’

Probably one of the best ways of approaching mediation is by comparing it to ‘going to court’; after all that is what most parties are expecting. It’s also a good way of educating the parties about what mediation is – and isn’t.

Mediation can take place tomorrow. Going to court can, and usually does, take years. Therefore, mediation is less expensive than going to court. Both parties can decide where and when they want to mediate (within reason) e.g. a rented office space for the day. On the other hand, the court decide where and when you will attend court. Most (but not all) mediation settlements can be agreed within a day. A court may take considerably longer, there’s also the risk of the case being vacated e.g. due to lack of finding a suitable judge or failure of a witness to attend.

So, immediately we can see mediation is far more logistically straightforward and flexible than going to court, and cheaper.

Nearly all judgements in a court are based on a ‘winner’ and a ‘loser’, with the loser usually paying costs. The award is usually money e.g. damages. And what the court (Judge) says is final (apart from the possibility of appealing the judgement). Therefore, one party will not be content with that outcome. Indeed, both parties might not be happy with the outcome i.e. the one that has lost and the other, that despite winning, has been awarded less damages than it thinks it deserves. In either case who wins or loses is far from certain and carries a high proportion of risk.

In mediation the parties themselves decide the outcome, they do not have to accept the judgement of a third party i.e. judge, and the mediator is only there to facilitate that outcome but has no say in that outcome. The settlement can be for money or anything else e.g. an apology or payment-in-lieu.

So, mediation is inexpensive, fast, flexible, and the outcome is agreed by both parties.

Whilst court is expensive, slow, ridged and the outcome is decided by a third party.

Going to court is like going into combat. It’s adversarial, and both parties expect to win, otherwise they wouldn’t be there. As time goes on both parties become more combative and consumed with emotion, dragging more complexity and cost into the mix.

Mediation on the other hand is about managing expectations and compromise.

So how do you turn the party’s away from the Dark Side?

That’s where the mediator comes in.

To be continued...