How Does Mediation Differ from Legal Litigation?

In litigation, disputing parties retain attorneys whose focus is on preparing a case that yields the best outcome for their client. This outcome is determined by a judge or jury. Litigation employs an adversarial approach that can include demeaning the opposing party.

Conversely, mediation is based on the principle that people can resolve their disagreements with proper support. It is non-adversarial and requires both parties agree to openly share information in a neutral, confidential environment. Mediation is voluntary and either party has the ability to withdraw or not to participate at any time. Mediators are not judges and do not have the authority to determine who is right or wrong. Their role is to simply listen to the details, offer potential resolution options, and assist parties in exploring the benefits of these options.

Who Should Consider Mediation?

Essentially, anyone involved in a legal dispute can use mediation to settle the issue. However, there are instances in which mediation is unlikely to be effective. For instance, if a divorcing couple struggles with abuse issues, chances are mediation will only make a situation worse. In order for mediation to be effective, both parties must be interested in resolving the issue and willing to negotiate to do so.

Mediation is especially effective when an existing relationship is mutually beneficial and there is incentive to continue that amiable relationship and prevent future disputes. Since mediation is focused on communication and finding a mutually beneficial outcome, as opposed to punishing one party or the other, it makes it easier to walk away from the process feeling positive about the situation. Litigation often leaves disputing parties feeling betrayed and untrustworthy of working with their adversary in the future.

What Occurs during a Mediation Session?

Mediations can include two types of meetings. First is the joint session in which everyone is present. Parties meet with the mediator to discuss and outline the basic issues, interests, and positions of each side. The second meeting is called a caucus and is a private and confidential meeting between the mediator and each of the parties. Finally, the mediator, with a complete understanding of the concern and positions of each party, brings together everyone involved to discuss and negotiate potential resolutions.

These meetings can occur within a single mediation session or over the course of several meetings and if the mediation is successful, will result in a written agreement between the parties.

How Can I Choose a Mediator?

One of the benefits of mediation is the ability of the disputing parties to choose the mediator.  This is not an option in litigation and disputing parties have no say in the judge or members of the jury.  This control of the process has several benefits, including:

  • It allows parties to feel comfortable with the facilitator.
  • It enables parties to choose someone familiar with laws pertaining to their specific dispute.
  • It creates a spirit of teamwork right from the beginning, as both parties must agree on the mediator, as well as the time and place for mediation.

To choose an effective North Carolina mediator, disputing parties must consider several things, including:

  • Training and experience
  • Experience or knowledge in a particular field
  • Cost and how a mediator’s fees are divided among the disputing parties to the mediation