When parties have a dispute, they typically turn to one of two methods to find a resolution: litigation or mediation. Litigation offers a formal, binding judicial process where a judge, jury, or arbitrator makes a decision concerning the outcome of the dispute. Jurisdictional rules and contract provisions dictate where parties must file potential lawsuits. Mediation is a more informal procedure where a neutral third party presides over a dispute, listens to both parties’ sides of the story, and helps them come to a voluntary resolution. Unlike litigation, mediation is typically not a binding proceeding. That means the mediator cannot make a decision about your dispute.
Our team prepared the guide below to discuss the difference between mediation and litigation. If you need help deciding whether mediation or litigation is the proper avenue for your dispute, contact a member of Batson Nolan PLC today so we can review your case.
Pros of Mediation
Although mediation is a less popular form of dispute resolution, it offers an alternative to litigation where two parties can try to resolve their dispute voluntarily. Mediation offers several advantages that make it more attractive than the litigation process. First, mediation typically costs less than filing a lawsuit. The filing fees are less expensive, and mediation preparation will cost less in attorney fees than preparing for formal litigation. Though you do have to pay the mediator for their time, this cost is typically split between the parties.
Another benefit of mediation is the speed and efficiency. Unless the dispute is particularly complex, most mediations last only one day. In most cases, you can schedule a mediation fairly quickly depending on the schedule of the mediator the parties agree on. While the court process can drag on for years, mediation can typically conclude within a few months.
Confidentiality is another benefit of mediation vs. litigation. The discussions held during mediation, and the final resolution are entirely confidential.
While courts are bound by rules of procedure, parties to mediation can get creative with solutions for their dispute. Mediation is not a place where one party is right and one is wrong. Instead, it allows the parties an opportunity to work with an unbiased third party to work towards an agreement.
Finally, mediation is a less adversarial process than going to court. This can protect relationships between parties to the dispute.
Cons of Mediation
While mediation does have certain benefits, it also has its share of disadvantages.
First, mediation is typically not a legally binding process. Even if you come to an agreement, the opposing party can still refuse to comply after the fact. If a party fails to comply with a mediation agreement, you may be forced to resort to litigation to resolve your dispute.
Next, mediation is only successful when the parties to the dispute make a good-faith attempt to come to an agreement. If both parties refuse to compromise on their position, the mediation will likely end in a standoff.
The parties need to put forth their best effort to resolve the dispute because the mediator will not make a decision for them. A mediation can conclude with no resolution, which means you may need to pursue litigation anyway.
Pros of Litigation
Like mediation, litigation holds certain advantages for parties who decide to file a lawsuit in lieu of or after mediation.
First, litigation is legally binding on both parties to the dispute. The court will issue a judgment that binds the parties. If someone fails to comply with the judgment, they can be held in contempt.
Next, resolving a dispute through the court process creates a legal precedent. That means if another party files a lawsuit with the same issue after yours is decided, the court will settle their dispute based on the judgment made in your case. If there is already legal precedent for your issue, this can give you an idea of how the judge may decide your case.
Finally, one party can file a lawsuit without any cooperation from the opposing party. Once the lawsuit is filed, the court will require the opposing party to participate. Otherwise, the court will decide the dispute in favor of the person who filed the lawsuit.
Cons of Litigation
Along with its advantages, litigation includes some disadvantages that make it an unattractive option for dispute resolution.
First, filing a lawsuit is expensive. You are responsible for filing fees, attorney fees, and other expenses that arise during your dispute. Complex litigation can require significant preparation and easily result in very high attorney fees.
Next, the court system is typically a slow, grueling process. Even if a case proceeds with no issues, it can still take up to a year to get in front of a judge to hear your case. Inevitably, delays and continuances can drag litigation on for several years.
Unlike mediation, most court proceedings are public, and judgments typically become public record. Thus, many people try to keep embarrassing or harmful information out of the judicial process.
The court process is adversarial by design. The parties advocate against each other in hopes of a resolution favorable to one side and unfavorable to the other. This adversarial process can destroy relationships between parties.
Differences Between Mediation and Litigation
The mediation vs. litigation advantages and disadvantages are discussed in detail above. The primary differences between mediation and litigation include:
- Mediation is a non-adversarial process, while litigation is adversarial;
- Litigation relies on legal precedent, while mediation allows parties to craft creative solutions;
- Mediation typically costs less and occurs more quickly than pursuing litigation; and
- Litigation can damage relationships, while mediation encourages compromise and finding solutions.
If you have questions about whether mediation or litigation is suitable for your dispute, contact a member of our team today.
When to Consider Mediation vs. Litigation
Deciding whether to use mediation or litigation to resolve your dispute is not an easy decision. Both forms of dispute resolution have their advantages and disadvantages. First, you need to be sure the opposing party will participate in a mediation and try to resolve the dispute. Otherwise, you may end up pursuing litigation anyway.
Another consideration is how quickly the issue needs to be resolved. As stated earlier, mediation is much quicker and often easier to predict than litigation. If you need a resolution sooner rather than later, mediation may be the best option. Further, the cost of mediation vs. litigation may influence your decision. If you lack sufficient funds to file a full-fledged lawsuit, mediation offers a cheaper alternative to resolving your issue.
You should also think about the nature of your dispute and your desired outcome. If you will only feel satisfied with a binding legal judgment, even a successful resolution through mediation may not be sufficient.
Finally, you should consider your relationship with the opposing party. Taking someone to court can permanently affect your relationship with that person. You may need to accept losing your relationship with someone if you plan to pursue litigation against them.
Remember, if you know the opposing party will refuse to participate in mediation or comply with a mediation agreement, you may want to opt for litigation instead. If you
and the opposing party have a close relationship that you want to preserve, mediation may be right for you.
How to Decide Whether to Select Mediation or Litigation? Contact Batson Nolan Today
The advantages of mediation include that it is:
- Cost-effective,
- Faster than litigation,
- Informal,
- Flexible,
- Confidential, and
- Collaborative.
The disadvantages of mediation include that it is:
- Only effective if both parties participate,
- Not legally binding, and
- Unstructured.
The advantages of litigation include that it is:
- Legally binding,
- Formal,
- Based on legal precedent, and
- Enforceable.
The disadvantages of litigation include that it is:
- Expensive,
- Time-consuming,
- Open to the public,
- Bound by rigid court rules, and
- Adversarial between the parties.
Depending on the facts of your case, opting for mediation in lieu of litigation can save you time, stress, and money. However, some parties simply refuse to participate in negotiations in good faith, eventually forcing the other party in the dispute to pursue litigation.
Our attorneys at Batson Nolan strive to provide our clients with the highest quality legal representation and secure the best outcome available, whether they pursue litigation or mediation. We will dedicate our time and resources to performing a comprehensive analysis of your dispute and help you decide whether mediation or litigation is right for you. Contact our office today to talk to a member of our team.