You have heard the expression, “When you only have a hammer, everything looks like a nail”? In other words, you have one tool, and you’ll use it for any job. Unfortunately, this often applies when it comes to resolving disputes. The difference between trial and mediation is more than a matter of semantics or even processes; it can mean the difference between fighting it out in court and settling a contentious situation in an equitable, risk eliminating, and more cost-efficient, manner.
The Difference Between Litigation and Mediation
The idea that the courtroom is the best, and only, way to resolve disputes is a belief not necessarily held in the best interest clients. That belief is the hammer, if you will. And of course, the client’s situation is the nail.
There are some circumstances that warrant litigation or a more conventional court-based approach. For example, when there is a significant discrepancy in the power of each party, a court ruling can build that equity in.
That said, in a vast number of instances, mediation is an effective tool. It is also one that can be overlooked, neglected, or even maligned by some trial lawyers. This can result in advocacy bias (failing to pay sufficient attention to a case’s weaknesses), cognitive dissonance (the inability to look at data or facts that contradict one’s viewpoint), and certainty bias (over-optimism regarding the outcome).
It is worth calling out cognitive dissonance specifically. In litigation, there is a winner and a loser. In mediation, that is not the case. There are interests and positions, and skilled attorneys and mediators can work towards solutions that are satisfactory – or at least, acceptable – to both plaintiffs and defendants. It is entirely possible to find solutions in which there are no losers.
Mediation is defined as an assisted negotiation with the help of a neutral and impartial third party. While every mediator brings their own skills, strengths, and experiences to the table, as a whole, mediators are trained legal professionals who help both parties explain their priorities and needs, weigh their choices, and work through their differences.
Thus, working with a mediator can provide certain clients – and certain legal cases – with a powerful advantage. Realizing this as an attorney can help you more effectively promote your clients’ interests.
Litigation vs. Mediation: When Mediation Makes Sense
For example, when a client wishes to avoid bad publicity over a business dispute, mediation makes sense. Mediation is a private process, whereas litigation is a matter of public record. Particularly in the age of electronic court filings, litigation can:
- Drive business partners and customers to competitors, potentially costing future revenue, market share, or other opportunities.
- Result in reputational damage and public scrutiny.
- Engender regulatory scrutiny.
- Make it more expensive and more difficult to get business done, as customers may take a more careful and deliberate approach to reviewing your client’s contracts, including having lawyers take more time to analyze the consequences of potential problems with the deal or transaction.
Now you know that arriving at a successful resolution requires an open-minded approach, transparency, and the willingness to let go of positions in order to get to interests. And you know that the hammer is not always the right tool for the job. Contact Breakthrough Mediation today to inquire about our alternative dispute resolution services.
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