What are the Advantages of Mediation?

Cost Savings 

  The primary reason why litigation is so expensive is well known:  The pre-trial discovery and discovery-related motion practice.  According to a recent Brookings Institute study of the courts, approximately 60% of the cost of litigation is attributable solely to pre-trial discovery.  Additionally, the cost for the personal appearance of expert witnesses at trial, generally required by the trial court’s evidentiary rules, is extremely high.  Mediation's simplified procedures, can allow for the presentation of expert testimony and other evidence by affidavits and written submissions, generally results in lower legal fees and discovery expenses.  The costs for mediation will vary from provider to provider but are a mere fraction of what discovery and trial in the Court system would cost. 

Time Savings

  Litigation in the Courts is often delayed by the backlog of pending cases.  A trial in the court system could take two years or more after suit is filed. Although most courts have improved their efficiency by reducing their case backlogs over the past years, often due to the success of mediation processes, present continuing budgetary cuts have dramatically impacted the Courts and their ability to effectively handle the number of cases presently in litigation. Alternatively, cases submitted to mediation with a private mediator can often be scheduled for  hearing within days of submission, depending on the availability of the parties. Most mediators are able to facilitate mutual agreements between the parties in a very short timeframe from introduction to the case through agreemewnt. 

Convenience

  Unlike the scheduling of a trial by the court, with ADR the parties select a mutually convenient time and place for a hearing.  Last minute postponements and delays, often resulting when a court is not ready for the case to commence as scheduled, are generally avoided by using ADR. Last minute calls by court clerks saying that the court needs you commence trial tomorrow do not occur when using ADR.

Flexibility

  Using ADR, the parties can tailor a dispute resolution process that will work best for them based on each individual case, whether, for example, non-binding mediation, binding arbitration or perhaps binding high low arbitration.  Using ADR, the parties often can retain greater control over the manner in which their dispute is resolved than they would if they opted for trial in the court.

Choice of Neutral

Using ADR, the parties mutually select the mediator who will assist and facilitate them in resolving their dispute, usually after being provided with detailed background materials.  In the courts, the parties do not know which judge their case will be assigned to, nor what experience that judge may have in the particular field of law that their case involves.  If a jury trial is requested, ordinarily the decision makers on the jury have no experience in the law or in the valuation of cases.  ADR providers such as MDRS offer retired judges or experienced attorneys as neutrals who have training and experience in the particular area of law involved in each case.

Privacy and Finality

For many parties an important advantage of ADR is the private resolution of their dispute.  This is often the case where reputational interests are involved or where the parties wish to limit public access to documents, exhibits, pleadings and testimony.  An ADR arbitration hearing or mediation session takes place in a private office setting and not in an open court room with spectators. A related concern of some parties may be avoiding a reported decision where an adverse precedent would encourage the filing of additional cases against the party.  Another important advantage of ADR to many parties is that except in certain rare circumstances, the arbitrator’s decision is final and is not subject to appeal, which appeals could take years, require significant further costs and result in continued uncertainty.

Preserving Ongoing Relationships

To many, no experience can be more adversarial than trial in the Court system.  Prior relationships that may have existed between disputants, i.e., whether former business associates, neighbors, employers and employees, married couples, etc., seldom survive the strain of protracted litigation.  In contrast, the informality of the mediation process, the mutual decision to elect mediation, the mutual selection of a mediator, and the focus of the mediator on the existing relationship often can help not only resolve the immediate dispute but also often increases the parties’ ability to resolve future disagreements in a nonadversarial manner.  Even the process of binding arbitration is less likely to further damage once beneficial relationships that may have existed between parties.

Risk Management

ADR proceedings can be structured in a manner that controls risk by setting limits on the range of outcomes, for example, by using a high-low arbitration format.  Such controls are particularly useful where there is a risk of a runaway jury or where the amount in controversy is such that a wholly adverse decision could be ruinous to one of the parties.  In mediation, of course, risk is always controlled because a party is free to refuse any offer until a satisfactory one appears.