Litigation versus family mediation
Family Mediation has become an increasingly popular form of dispute resolution, as an effective alternative to the expense, length and unpredictability of litigation. This article looks at these two forms of dispute resolution, and their relative advantages and disadvantages.
What is family mediation?
Family mediation can either be seen as a process, a step removed from litigation, or one applied in conjunction with it. Disputing parties enter into discussion of unresolved issues in a process overseen by a neutral third party, to achieve negotiated outcomes agreeable to both parties. The mediator facilitates the discussions impartially.
The benefits of mediation over litigation
Family mediation brings together disputing parties in a calm, non-confrontational environment overseen by the mediator. Within this environment, parties are able to fully engage with each other, presenting their position and listening to the other. The aim is to reach a settlement that satisfies both parties, as a result of each party being open about their own needs and feelings, and attempting to understand those of the other. The atmosphere is more relaxed, and less confrontational than the third-party adversarial positions generally adopted by legal teams. Participants are able to withdraw from the mediation process at any point.
A court case can be filed without the other parties’ agreement meaning that one party can make a court application regardless of the other’s desire to proceed to court. Another benefit of litigation is that court cases set precedents. This means that subsequent cases can be similarly decided, allowing parties a level of predictability to the case outcome. Legal advisors, as the name states, are able to provide legal advice, whereas mediators can provide legal information and not legal advice but are also able to generate ideas with mediation participants.
In mediation, there can be an unwillingness to mediate by one party. Family mediators cannot force participation in the mediation process.
Comparison of costs
Because all parties are brought together (in person or online) and encouraged to reach mutual understanding, mediation tends to be swifter and less expensive than traditional legal proceedings. Mediation can often resolve disputes in a single session, whereas legal proceedings may drag on for months, if not years. As a result, costs are generally a fraction of those incurred during litigation.
Additionally, a judge’s decision is purely fact-based, and therefore litigation tends to involve a lot of background research to ascertain the full facts of every dispute, which adds further to both the timeframe and potential cost of legal proceedings.
However, it is worth bearing in mind that, in certain circumstances where no satisfactory outcome is achieved and parties are forced to return to litigation, mediation can add to your costs. Most mediations achieve successful outcomes, with CEDR surveys suggesting almost seventy percent of disputes are resolved on the same day and almost ninety percent shortly afterwards, but this still leaves ten percent of cases unresolved.
Future relationships
One of the most fundamental benefits of entering into mediation over litigation is that it allows disputing parties to enter into a full and frank discussion of their dispute, listen to each other and find mutually agreeable solutions. In contrast to the adversarial nature of court proceedings, this allows both sides to take ownership of decisions arrived at as a stepping stone to a more amicable future relationship. This is especially important where children are involved and can be a first step to healing destructive divisions.
Contact us today for more information on alternative dispute resolution or to discuss the services we provide.
