I recently read an article in the Huffington Post that highlighted the downside of litigation and praised the seemingly unending benefits of mediation. The article seemed to suggest that mediation was a choice and a natural process of every dispute. Normally, I would read the article and move on to my next task. Yet, I feel compelled to comment and expound upon the statements presented in the article and explain why mediation is not always a feasible option.
The article, which is written by a divorce attorney and mediator, accurately describes the benefits of mediation in divorce proceedings. It is true that mediation can achieve a faster resolution than litigating a matter in the courts. It is also true that it can be cheaper than litigation and can be more amicable. However, it is important to understand that not every matter can be mediated. Having a client believe that mediation is a natural process in every case is dangerous and misleading. Let's look at why mediation is not always an option.
What is Mediation?
I am going to keep this simple. (Let's leave all the legalese for someone else). Mediation is basically an agreement between people or parties on opposite sides of a dispute to sit down with a neutral third-party and try to work out their differences. Mediation is non-binding, meaning that the mediator cannot force a party to settle or cannot issue an order or award. It's that simple.
Here is how it works. Let's say, for example, that Kevin had a contract with Sally, a photographer. Kevin paid her $5,000 for some pictures he was going to use on his company's website. Sally took and delivered the pictures. Kevin hates them and believes that Sally did not give him the number of images or quality that she stated she would in her contract. Kevin wants his money back and Sally disagrees. Kevin could sue her but instead, they both agree that they should sit down with a mediator and try to resolve the issue.
It is also possible for parties already involved in a lawsuit to agree to try to mediate the case in the hopes of ending the litigation and avoiding the expense and uncertainty of trial. This often happens when the parties both desire to settle but need help reaching mutually agreeable terms.
Another way to get to mediation is if a contract or agreement states that the parties must attempt to mediate the dispute before filing a lawsuit or submitting the dispute to arbitration. However, the parties ultimately agreed to mediation when the signed the contract, despite the lack of a dispute at the time of signing.
The Key to Taking a Dispute to Mediation
Guess what it takes to get a mediation going? That's right, the parties must agree to mediate. Unless there is a contractual requirement, Kevin, from the example above, does not have to ask Sally to mediate. Instead of mediating he can simply sue her. Even if he were to ask her to mediate, Sally could simply say "no, sue me." Sometimes, a dispute can be so heated that there is no way that the parties will even agree to speak to one another, let alone mediate the dispute.
Not Really a Choice
The problem with saying that mediation is a "choice" is that it is not a viable option in every case or legal dispute. You can't simply choose to mediate a dispute unless all parties agree. The suggestion that you can choose to mediate instead of litigation is not accurate. I have represented many clients who find themselves as defendants in a lawsuit and ask the other side to mediate only to be told "no."
The problem that I have with the Huffington Post article is that it may mislead people into believing that they can simply choose mediation over litigation to avoid the expense of a lawsuit.
As long as we are on the topic of expense, let me tell you that I recently finished mediating a commercial dispute that cost each side close to $40,000. So, when you hear that mediation is cheaper than litigation, keep in mind that it may still be expensive.
Bottom Line
So, the bottom line is this, around 98% of all legal matters resolve through some form of settlement. Thus, settlement negotiations are always a viable option to resolve a dispute. In fact, every case that I have ever handled involved settlement negotiations, even if the case ultimately went to trial. However, mediation, while beneficial, should not be mistaken to be a right in every case and is not always an option to avoid litigation. Remember, the key to meditation is that all parties must agree to mediate. If one party refuses to participate, there may be no other option but litigation.
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