Mediation is a tool that parties to a legal dispute can use to reach a compromise settlement instead of going forward with the risk and expense of litigation in a public court. Typically, the parties jointly retain an experienced, neutral Mediator to facilitate a compromise resolution after the Mediator confers with both parties and their attorneys about the cost and risks of proceeding with litigation.
Mediation Is Not Justice
Unlike a judge, the Mediator’s primary objective is not focused on reaching a just outcome. In fact, mediation cannot succeed unless all parties are prepared to make significant compromises, including the party that legally deserves to win. The Mediator’s singular goal is to persuade all parties to make the compromises that are necessary to reach a settlement and end the dispute, without making any judgment about the fairness of those compromises. Mediation is effective in ending legal disputes largely because the uncertainty, risk and cost of public court litigation is very high, even for the party that ultimately should prevail.
Litigation is inherently risky. Decisions often are made by judges whose prior legal experience was in an entirely different field of law and by juries with no legal training at all. Many years are required to get to trial and then, through subsequent appeals. But, even if the ultimate outcome of a court battle were 100% certain, the cost of getting to that outcome often approaches, or exceeds, the benefit of obtaining it. Mediators are very skilled at persuading innocent defendants to raise the amount they will pay, and persuading deserving plaintiffs to lower the amount they will accept, by the extraordinary amount of attorney fees they each would have to risk seeking an uncertain outcome in court.
For those reasons, mediation is effective at ending legal disputes, but the process is not designed to reach a just outcome. Mediation succeeds because the litigation alternative is risky and economically inefficient. No one should confuse that with justice.
But, what if the alternative to unjustified compromise was a far less expensive, much faster, and less risky system for obtaining an enforceable decision that resolves the dispute? Under those circumstances any compromise reached in a mediated settlement would be based entirely on the relative merits of each party’s legal position instead of the high cost of obtaining a court verdict and the risk that it might be unjust.
That is why mediation is better when the alternative to settlement is a Comprehensive Adjudication, instead of litigation. The parties agree to jointly interview recommended candidates and jointly select one to be their neutral Adjudicator who will vigorously search for all the law and evidence supporting the Claimant, and just as vigorously, search for all the law and evidence supporting the Defendant. Instead of a court trial many years down the road, the Adjudication begins immediately with the Adjudicator reviewing subpoenaed evidence and examining the witnesses under oath before promptly resolving their dispute in an enforceable, written decision.
Because the parties jointly select the Adjudicator, after jointly interviewing recommended candidates, they can be assured that the decision resolving their dispute will be made by a preeminent, neutral, intelligent, and hard-working legal professional with extensive prior experience in the relevant field of law. And because the parties split the cost of the selected Adjudicator, they can be assured that their legal fees will be less than half the cost of each party retaining separate counsel to research the same legal authorities, review the same evidence, examine the same witnesses, and attend the same hearings and trial in public court litigation.
Using Mediation In The Midst of An Adjudication
An Adjudicator usually can thoroughly investigate the facts and decide the dispute in a matter of months, instead of the many years required for public court litigation. However, if the parties also wish to explore the negotiation of an amicable settlement, they always are free to retain a separate Mediator to facilitate their discussions.
Bottom line: Mediation works better with Comprehensive Adjudication because the alternative to an unfair proposed compromise is a reliable, speedy, and affordable process for obtaining a fair and enforceable decision. Under those circumstances the parties can make mediated compromises based upon the actual strengths and weaknesses of their legal positions, instead of the excessive cost and risk of litigation in the public court system.