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Mediation Bigger Solutions
It’s not news that business and employment
disputes are turning more and more frequently to litigation
for resolution. Even where a party and his or her counsel feel
confident about the ultimate result of the court process, litigation
creates its own problems and may leave critical issues unresolved.
Mediation creates the potential for more comprehensive solutions
by employing a constructive rather than determinative process.
Mediation addresses the emotional fuel of the conflict.
Mediation provides a safe environment for the parties to bring
forward all their issues. These issues may lie outside the scope
of any controlling law, and would remain long after litigation
ends. Mediation gives the parties the option and opportunity
for a face-to-face discussion of all the issues. Lowering the
emotional level can create a window of opportunity for the parties
to work toward solutions.
Mediation is confidential. The litigation
process requires that everyone involved will have to deal
publicly with difficult factual allegations over and over.
In mediation there is no record created and no need to involve
outside parties. The participants work privately under an
agreement of confidentiality to create their own resolution
with the mediator’s help.
Mediation is Prompt. The length of time to
trial may mean that parties and other witnesses will have
to face one another at work or in the business community,
day after day, for months or perhaps years until the matter
is resolved. Even where the participants had no prior relationship,
or no longer have any relationship, the existence of the litigation
burdens the parties by uncertainty. The discovery process
burdens the operations of business participants. For the individuals
named in a lawsuit “getting on with life” may
be almost impossible.
Mediation saves money. The cost of a day
of mediation is not insignificant, but generally it is borne
equally by the parties to insure everyone has a stake in the
process. The full cost of mediation is considerably less than
the amount necessarily incurred during the pre-trial process.
A successful mediation also eliminates the risk of a judgment
for costs and any potential attorney’s fees awards.
Mediation is creative. Mediation can resolve
all the issues: those that are part of the suit and those
that underlie the complaint. Mediation is not limited to monetary
resolutions. Where the participants have an ongoing relationship,
agreed changes in the way the parties will interact in the
future may have great value. In instances where simply too
much water has gone under the bridge, the mediation process
can help the parties finds the means to part ways constructively.
The participants’ goal of avoiding future lawsuits may
also be assisted by the information gained in the mediation
process.
The research indicates that over 85 percent of all mediations
are successful. By turning to a process that is constructive
and informative rather than determinative, participants can
more quickly, economically and confidentially create solutions
to the issues and return their attention to their businesses
and their lives.
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