Advantages:
If mediation follows no set procedure, results in no assured outcome, and cannot compel parties to agree unless those parties wish to do so, what advantages are there to mediation?
- Mediation is relatively inexpensive. Seeing a case through trial is an expensive proposition.
- Mediation is relatively swift. There is no dearth of mediators ready and willing to assist parties whose goal is to try to settle a matter. A quick web search will result in hundreds of mediators and mediation websites, some specializing in certain types of cases and some more experienced and able than others. Mediation does not run by a clogged court schedule and sessions can be easily scheduled any time at the mutual convenience of the parties and the mediator, and can take place in a variety of locations.
- Mediation is relatively simple. There are no complex procedural or evidentiary rules which must be followed. While most would agree that a general rule of fairness applies, the maximum penalty a party can impose for foul play is to walk away from the mediation and take his chances in court.
- Mediation allows the parties to revise and adjust the scope of their conflict. In a trial, initial pleadings and rules of procedure limit the issues which a party can raise. In mediation, as circumstances change so can the topics up for discussion. This increased flexibility makes it easier for negotiators to act as problem-solvers instead of adversaries.
- Mediation allows for flexible solutions and settlements. The relief available in court is usually based on pecuniary damages, and equitable relief is hard to come by. In mediation, however, the parties can agree to a settlement requiring, or restraining, action by one party which was not originally envisioned as something beneficial to the other party.
- Settlements reached in mediation are more agreeable to both parties than court judgments. Because any settlement arrived at through negotiation is necessarily agreed to voluntarily by both parties, obligations under the agreement are more likely to be fulfilled than obligations imposed by a court.
Disadvantages:
This list is by no means exhaustive, but at least presents a framework in which we can consider the advantages of mediation. In addition, there is a similar list which can be constructed in which we can start to consider some of the typically mentioned disadvantages of mediation.
- Mediation does not always result in a settlement agreement. Parties might spend their time and money in mediation only to find that they must have their case settled for them by a court. Opting for mediation, therefore, presents something of a risk. Further, if mediation fails, much of a party’s “ammunition” might have already been exposed to the opposing party, thereby becoming far less useful in the ensuing trial.
- Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts. The lack of formality in mediation could be a benefit, as noted above, or a detriment. Mediation between parties of disparate levels of sophistication and power, and who have disparate amounts of resources available, might result in an inequitable settlement as the less-well positioned party is overwhelmed and unprotected.
- Legal precedent cannot be set in mediation. Many discrimination cases, among others, are brought with the intention of not only securing satisfaction for the named plaintiff, but also with the hope of setting a new legal precedent which will have a broader social impact. These cases are only “successful” if a high court (usually the United States Supreme Court) hands down a favorable decision on the main issue. Mediation is therefore not beneficial for such cases.
- Mediation has no formal discovery process. If one of the parties to a dispute cannot fully address the case without first receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.
So is mediation a good thing? Should you mediate a matter rather than litigate? The answers to these questions depend on which of the various advantages and disadvantages of mediation apply in any given case.
Mediation FAQ
Courtroom litigation is a great resource, but it’s not always the best way to resolve disputes. There are times when an alternative method is more practical, and mediation is one of them. Settling disputes through litigation can be expensive, frustrating, and even stressful. So instead of taking a dispute to court, a lot of cases are eligible for mediation in Texas. Unlike a courtroom trial or arbitration, there’s no judge or factfinder to issue a ruling. Instead, there’s a mediator that’s there to help both parties find an agreeable solution that’s mutually beneficial.
Here are some of the common questions people ask about Texas mediation.
When two parties are involved in a civil dispute, the best way to approach it is to find a solution that both of them think is fair (which is the ultimate goal of the mediation process). Both parties get together to talk about how they can fairly settle their dispute. A neutral party (who is called the “mediator”) guides both parties through this process while also setting the ground rules for the process. This person will also help them to understand each other’s side of it as he or she offers advice on the bargaining process.
Unlike court cases and arbitration (where both parties are legally required to follow a ruling with which they may disagree), both parties are only bound to what they decide is a fair solution. The mediator can’t impose any terms that neither party accepts as part of a mediation agreement, which is one of the main benefits of this process. But while you’re deciding whether mediation is best for your dispute, you must also consider other aspects of the process (such as where to find a mediator that offers the right solution to your specific dispute).
People may choose to resolve their disputes through mediation for many reasons. One of them is that it can offer results faster than a formal lawsuit. Mediation will also have a lower cost, which can be an advantage as well. But unlike a formal lawsuit, mediation sessions will allow both parties to have control over the solution instead of relying on a judge to make a ruling that neither of them is satisfied with. Some people may choose not to pursue mediation, because finding a compromise or settlement agreement isn’t in their best interest. If an injured party believes that the other is entirely at fault, he or she may not want to negotiate through mediation.
Mediation is an option for a number of civil cases and is often the best choice for cases that don’t involve large amounts of money or complicated legal issues. They can be anything from disagreements between business partners to arguments between neighbors. In many cases, these disputes can be resolved through better communication instead of going through an expensive legal process. Parents can come up with a child custody arrangement instead of having a judge impose one that may not be the best for the child or the parent. Some states will even require child custody disputes to go through mediation before a claim can be taken to court.
Mediation can be used to solve non-violent criminal cases (such as verbal harassment). Some jurisdictions may even refer certain criminal cases for restorative justice mediation, which usually involves “victim-offender conferencing.” Like civil mediation, these programs are voluntary. But it allows both the offender and the victim to get insights into why the crime occurred and why they were the focus. It can also allow offenders to express any feelings of remorse. They may even come to an agreement about restitution or some other remedy.
If it’s done in a structured way, these mediation programs can resolve criminal cases that can satisfy both the victim and the offender. In some cases, it can help with the process of negotiating a plea bargain. They might even come up with an agreed settlement. But they still need to get it approved by the defense attorney, prosecutor, and the court.
Texas mediation is very private and confidential. They’re also closed to anyone except the involved parties. Mediators aren’t allowed to disclose any information they have obtained throughout the process, and nothing disclosed during the mediation sessions can be used as evidence if the case were to go to court (which many people see as a benefit of mediation).
If you’re looking for someone to help you with the mediation process in Texas, be sure to get in touch with Gale Law Group.