Mediation                                                                                                Litigation

The mediator controls the environment and procedure.             The attorneys and state apparatus control the process

Parties are in charge of the solution, meeting their needs.         The attorneys negotiate a settlement, or a judge decides

Parties are in control of time and costs.                                             Time and costs can escalate alarmingly

The parties become aware of both sides of the argument.         The parties are confrontational, out to get the other side.

Future relationship and communications are attended to.          Future communications may be destroyed.

The process is confidential and minimises stress.                           The process is stressful and affects family and business

 

 Resolving a Dispute; Litigation or Mediation?
Both routes begin with an event that gives rise to a dispute. Each party’s opinion about the event stems from his/her world view, formed by experiences within family, community, society, etc. Each party adopts a position and becomes attached to it, identifies with it, defends it, and any contrary argument or alternative perspective is felt as an attack on the individual personally. The party experiences discomfort or distress and wants to resolve the issues. Depending on the nature of the dispute there may be two options.
The Litigation Route The Mediation Route
 
Each party seeks legal assistance to enforce his position, to exert her perceived rights. The parties seek dispute resolution assistance via mediation.
Each attorney forms his own opinion of the party’s legal position. Conflicting opinions about the same event become entrenched. Side effects manifest: expenses mount, delays happen, emotional distress increases as do fears of an unfavourable outcome and dilution of productive attention, etc. In an empathic, confidential, risk-free environment the mediation process facilitates a re-analysis of the event by each party separately, focusing on the party’s needs, interest and concerns. Ie a process of revising entrenched positions towards more objective aspects.
Each attorney generates a case favourable to the party, one that purports to uphold the party’s perceived rights to remedial action.  There has been a complete transformation of the original event into two fully divergent versions. These contradictory versions are then presented for a decision by a court of law. Separately, the parties explore a range of options in a, confidential, risk-free, facilitated, supportive environment. The mediator encourages each party to self-develop a range of potential solutions to their side of the dispute. The mediator controls the process, the parties control the outcome.
The court analyses the rights claimed in these opposing arguments, and resolves the dispute based on the court’s interpretation of which version of reality best aligns its rights claims with those espoused in the law. The atmosphere is contaminated with unpredictability and risk. The mediation process is characterised by confidentiality and absence of risk. The mediator is bound to secrecy in respect of anything discussed with either party, and any comments, concessions, offers, proposals and suggestions made by either party cannot be used or referred to in any subsequent proceedings.
The presiding officer, who may not have a complete understanding of the underlying issues, delivers an unpredictable outcome. This is enforced upon the parties. Win? lose? Even with costs, any award will be significantly eroded or even neutralised by actual legal expenses The mediator becomes aware of emerging common ground, and the mediator asks permission to reveal constructive comments to the other party. All input and interactions are confidential and remain within the four walls of the mediation, both during and afterwards.
The net benefit may be low. The toll of the process on the parties is unquantifiable.

 

 

 

 

Either jointly or separately, the mediator facilitates an exchange whereby common ground is expanded sufficiently to form a solution to the dispute. A settlement agreement is drafted. Cost are low, and the parties emerge with a self-generated solution that meets their needs, interests and concerns.