Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time.
The following chart compares litigation, arbitration and mediation.
The pros and cons of each are discussed in detail beneath the chart.
|Formal process||Less formal process||Least formal process|
|Formal rules of evidence||Rules of evidence relaxed||Rules of evidence do not apply|
|Formal discovery||Limited discovery||Informal fact-finding|
|Public record||Hearings are private||Private and confidential|
|Judge/Jury makes decision||Arbiter makes decision||Parties make decision|
|Verdicts final, subject to appeal||Decisions can be binding with limited appeal rights||Parties decide whether to settle; agreements are enforceable contracts|
|Expensive and time-consuming||Often quicker and cheaper than litigation||Quicker, cheaper and less stressful than litigation|
|What are the disadvantages of
litigation and arbitration?
v Time and Money. Litigation - a courtroom trial - requires many hours of an attorneys time over many months or years, taking depositions and other steps to learn about the other sides case. Litigating even the simplest of disputes costs $10,000 to $20,000 and in more complex cases it costs much more. Arbitration is usually a little faster so it normally costs less than a court trial, but there are no guarantees it will be faster or cheaper. As a way to resolve conflicts, they are both expensive, inefficient and can permanently destroy relationships.
v Win/Lose. In litigation, a judge or jury declares a winner and a loser and awards a judgment to the winner. As recent high profile trials have shown, juries are very unpredictable. In arbitration, one or more arbitrators acting as judges and jurors, consider the evidence, decide who wins, and enter an award in their favor. The award must be filed with a court to be enforced like a judgment. The loser has little chance of appealing an unfavorable arbitration award.
v Loss of Control. In both litigation and arbitration, control of the result is given to a third person or persons with no stake in the outcome. Control of the process is held by the lawyers who can only interact with their own clients and with one another. Personal contact between the disputing parties is lost, increasing their feelings of alienation toward one another.
v Inconclusive. "Winning" the case in court or at arbitration does not guarantee an end to the dispute. Most judgments and awards require the loser to pay money to the winner, but getting the money is not automatic. More trips to court to locate assets, attach liens, foreclose on assets, and argue appeals are often required and if the person ordered to pay is bankrupt, all may be for naught.
v Publicity. Since most court proceedings and records are open to the public, there is no guarantee of privacy in litigation. Business secrets, family secrets, embarrassing details about your life all could be in tomorrows newspaper or on the evening news.
v Lose/Lose. Whether declared a winner or a loser, both sides lose. They lose control over the process and the outcome, they lose relationships with others, and they lose the money spent fighting the other side.
Why is mediation an advantage over other methods?
v Fast and Efficient. Since an average mediation takes a single day, the efficacy of this method speaks for itself. A trial attorneys time spent on the deposition of a single witness may take longer than the mediation.
v Control. Since the whole process is voluntary, the parties have complete control over the outcome; if they dont agree, there is no resolution and their other options are still available.
v Finality. 95% of disputes I mediate end in agreements that are fulfilled by both sides without any appeals or further litigation.
v Win/Win. Mediation can provide creative solutions that cant be obtained in court or from an arbitrator. Solutions like increased orders for products, a bonus, a training program for employees, or simply a sincere apology. Or it could be an agreement for one party to stop doing something like mowing their lawn in the morning. Something that, while it may be annoying, would not be something a judge would order them to stop doing. Relationships are often preserved, healed, even strengthened.
v Privacy & Confidentiality. The process is completely private and confidential. This allows people to openly discuss issues without the possibility of public exposure.
v Peace. Mediation usually results in a better understanding between people, which leads to peace. Clearing up misunderstandings promotes the peaceful resolution of most disputes.