Mediation is a voluntary, non-binding process using a neutral third party to guide the party’s toward a mutually beneficial resolution of their dispute.
Unlike an arbitrator, who can impose a decision, the mediator helps the party’s to decide for themselves whether to settle and on what terms. The mediator acts as a catalyst possible bases for agreement and the consequences of not settling and encouraging each party to accommodate the interests of the other party’s.
Mediation has several advantages, particularly when utilized early in the life of a lawsuit:
Mediation is consistent with the goals and economics of a plaintiff’s attorney’s practice. The earlier a case is resolved the earlier the plaintiff and plaintiff’s counsel gets compensated. Mediation provides benefits to defense counsel as well. Suggesting mediation to the defense client evidences a commitment to take a cost effective approach to solve the client’s and demonstrates the client that thru attorney appreciates his or her ethical and professional responsibilities. This will generate good public relations through providing defense counsel with a reputation as a “problem solver” who is committed to producing cost effective results through mediation which, in turn, will learn defense counsel more files and new clients.
Arbitration involves selection of a third party who acts as a decision maker whose decision can, or in cases of binding arbitration, must be accepted by the party’s. Typically, the arbitrator has a hearing in which the party’s present evidence after which the arbitrator hands down an award. Arbitration can be a beneficial tool for resolving disputes if the party’s insist on having a third party come up with a solution for them. However, like litigation, arbitration is an adversarial and adjudicative process. The party’s relinquish all control and, because they are not active participants in the decision making process as they are in mediation, they may be dissatisfied with the result.
In a court sponsored settlement conference, typically the attorneys informally present their cases to a judge or panel of impartial third party’s, usually trial lawyers, who render opinions for the party’s to use. Many cases do settle through court sponsored settlement conferences. One disadvantage is the fact that court sponsored settlement conferences usually occur late in the process shortly before trial and after the party’s have invested much of themselves and their money in positions from which they cannot easily back away. Another disadvantage is that the judge’s “evaluation” of the case will give leverage to one side and make that side more intransigent and the other side more skeptical of the process. Instead of moving the litigants toward common ground, the judge’s evaluation can drive them farther apart.
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