In legal litigation, the parties retain attorneys whose focus is to prepare a case which will result in the best decision for their client by a judge. Often, litigation includes an adversarial approach demeaning the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the 'victorious party'. In the long run, everyone pays a price in litigation.
Mediation is based on the principle that people are capable to resolve their own disagreements if given the right support. Generally, it is non-adversarial and the parties agree that all information will be openly shared in a safe, neutral environment. It is a voluntary and confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No tape recordings are made and no court reporter is present. The mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator does not represent either party. Generally, the mediation does not include lawyers except in a consulting or reviewing capacity. However, in some cases, mediation includes both parties and lawyers. www.mediationfaq.com
Mediation almost always costs much less than litigation—in many cases, less than half as much. The total cost will depend on how many sessions are needed to settle the dispute and the expense is usually divided between the participants.
Typical mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party. Major business disputes -- those involving lots of money, complex contracts, or ending a partnership -- may last several days or more.
Private divorce mediation, where a couple aims to settle all the issues in their divorce -- property division, alimony, child custody, visitation, and support -- generally requires half a dozen or more mediation sessions spread over several weeks or months. www.nolo.com
Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, estranged business partners might choose mediation to work out an agreement to divide their business or two individuals may want to hire a mediator to assist in negotiating a business-to-business contract. Virtually any type of legal case can be mediated. www.nolo.com
Even if an agreement is reached at mediation, it may not be legally binding. Agreements can always be redrawn as a legally binding contract after mediation. If you want to ensure your agreement will be binding, seek legal advice about what is required before you start mediation. If the mediation occurs as part of a court action, the agreement may be formalized as consent orders, which carry full legal weight. People tend to keep agreements even if they are not legally binding, because:
In mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:
In most mediations, you won't need a lawyer right there with you. This is because the parties are trying to work together to solve their problem -- not trying to convince a judge or arbitrator of their point of view -- and because mediation rules are few and straightforward. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make a lawyer's approval a condition of any agreement you reach. www.nolo.com
The sooner the better, before matters have escalated. Mediation doesn't have to be a last resort. It can break a deadlock in friendly discussions as well as hostile ones. You can seek mediation at any time, regardless of what other options are available or whether legal proceedings have started. Not everyone may be ready for mediation at the same time.
Some people need time to consider other options, seek more information, work around family, work or other commitments, or overcome emotions like anger and fear. Some court or tribunal processes may require mediation before the case can progress. You should seek legal advice about your options at this stage. www.justice.vic.gov.au
