Benefits of Mediation
Anytime there are two or more people involved in a transaction, there exists the possibility a dispute will develop. Disputes can be disruptive, time-consuming, and costly. With the advent and increasing use of various alternative dispute resolution (“ADR”) procedures, there are a variety of different processes parties may utilize for resolving their dispute. One such process is mediation. Mediation as a dispute resolution process offers its participants certain benefits other dispute resolution processes do not and cannot offer. Some of the more common or recognizable benefits of mediation are discussed below.
Higher level of party participation
Mediation provides the parties an opportunity to speak and deal directly with the mediator. Depending upon the nature of the dispute and other factors, the parties may also be given the opportunity to speak and deal directly with one another at mediation. The parties participate in the process of resolving their dispute by discussing the issues, asking and answering questions, and making decisions. The mediator merely facilitates the parties’ communication and participation while assisting them in reaching a voluntary resolution of their dispute.
Mediation can be quite cost effective as compared to litigation or other ADR procedures as it may enable the parties to reduce the amount of attorney fees they may incur in litigating or arbitrating their dispute. This can be especially true if the parties are able to successfully resolve their dispute either early on in the process or, even better, during the pre-litigation or pre-arbitration stage before a lawsuit or demand in arbitration is even filed.
As provided in the Mediation Confidentiality and Privilege Act (“Act”), §§44.401 – 44.406, Fla. Stat., unless the parties expressly agree not to be bound by the Act, all mediation participants are required to abide by very strict confidentiality requirements. See §44.405(1), Fla. Stat. Failure to abide by these confidentiality requirements can subject a mediation participant to remedies including compensatory damages, equitable relief, and/or attorney’s fees and costs. See 44.406, Fla. Stat. These confidentiality requirements encourage the participants in mediation to engage in a full and frank discussion of all aspects of the subject dispute, including, among other things, the parties’ views on the key issues and potential remedies. This free flow of confidential information can result in a resolution of the parties’ dispute that is beneficial and satisfactory to all involved.
More flexibility and control
Mediation offers the parties more flexibility and control over whether and how to resolve their dispute. Through mediation, the parties are also able to resolve more than just the underlying dispute. Mediation provides the parties an opportunity to address and potentially resolve any issue they wish, which may include resolving secondary or other issues a court may not address in litigation. Mediation also offers the parties the opportunity to avoid the uncertainty of a judicial outcome or, essentially, dictate their own fate.
Increased likelihood of fulfilling the terms of settlement
With litigation and binding arbitration, one party may win while the other may lose. As a result, one party or the other may be displeased with the terms of a court’s judgment or an arbitrator’s award. This displeasure may result in one party failing to fulfill the terms of the judgment or award, which may lead to further litigation to enforce the terms. With mediation, the parties participate with one another in resolving their dispute. In the event the parties reach a mutually satisfactory resolution of their dispute, the likelihood of the parties fulfilling their own terms of settlement is increased.
This blog is not intended to discuss all the benefits of mediation as there are, indeed, other benefits not mentioned above. Given the many benefits to mediation, parties to a dispute may have much to gain by participating in mediation as opposed to, or perhaps prior to, other dispute resolution procedures. For these reasons, among others, this writer truly believes in the mediation process as it has proven not only beneficial but successful in resolving parties’ disputes.