Mediation is a process by which a Mediator facilitates and encourages communication and negotiation between the mediation parties, and seeks to assist the mediation parties involved in arriving at a voluntary agreement.
Here are the benefits of mediation as opposed to settling a matter in a court of law.
Mediation can be arranged and commence as soon as both parties agree to the process. However, bringing an action in court requires the courts to determine the date of trial based on its schedule. A court date may be set for years in the future and can also be affected and postponed for numerous reasons. Reasons include but are not limited to circumstances, attorney availability and the other side being unprepared for the commencement of trial. Such factors can lead to the postponement of court cases and a lengthy delay in the achievement of resolution.
The cost of each Mediation session is conveyed to the parties involved upfront and unless otherwise agreed, the cost of mediation is usually paid in equal parts by the parties involved.
While going to court may seem like a good idea at the time, most people don’t realise and are not informed that if they “lose” their case at the court, they will more than likely be required to pay “costs” (Attorney fees) of the other side, in addition to their own Attorney and court related fees. Depending on the Attorney’s experience and the overall duration of the case (which can last for several years), this procedure could be quite expensive, as Attorneys must be paid for every court appearance.
By its very nature, mediation encourages the parties involved to work together toward mutually beneficial solutions.
More often than not, mediation therefore encourages, fosters and preserves a good, long-term relationship between the parties involved. Court however, is more adversarial owing to the perception that one party must “win” at the expense of the “losing” party. The court system generally does not foster communication between the parties or the decision maker directly as all communication passes through Attorneys.
In mediation, the parties represent themselves instead of having an Attorney speak on their behalf.
This gives the parties involved an opportunity to express their feelings, a greater sense of control over the process, and a general sense of well-being and commitment to the success of the process.
During mediation, the potential outcomes and solutions are determined only by the parties involved in the mediation process. Accordingly, parties to a mediation are empowered to create the best solutions that are most beneficial to the interest of all parties involved. Going to court however, means that neither party has any control whatsoever over the outcome of the case but they must both abide by whatever decision the court makes.
In the event that an agreement previously agreed to by the parties proves to be impractical or ineffective, the parties can simply go back to mediation and find a more efficient solution. Parties under court order however, must obey the orders of the court unless or until they have the time and money to go back to the courts and even then, the court is not obligated to change its orders.
As parties to the mediation must implement the terms and conditions of the agreement themselves, they are more likely to pay attention to the finer details when creating the agreement which is customised to the unique circumstances of each situation. Accordingly, parties to mediation agreements feel a deeper sense of commitment to the terms and conditions agreed upon as they were so involved and instrumental in the process. Consequentially, parties are more motivated to comply with mediation agreements than an agreement imposed upon them by a third party with no vested interest in the matter.
Written by: Maria Joseph – BA (Hons), LLB. Management & Legal Consultant, Mediator Certified by the Mediation Board of Trinidad and Tobago.
Find out more about Mediation from Empower Administrative & Business Development Services Limited.