When two or more parties are in conflict, they face options for solving their problem. The law’s most common approaches to solving conflict are litigation and alternative dispute resolution, or ADR. Mediation is one form of alternative dispute resolution. Below, we highlight the differences between mediation and litigation.
Mediation is a voluntary process where an impartial third party, a mediator, facilitates a conversation between the parties in conflict. The goal of mediation is for the parties to reach a mutually satisfactory agreement.
The mediation process takes place outside of the courtroom in a neutral environment, and it is strictly confidential. Anything discussed in mediation stays in mediation and cannot be used in court if the parties decide to litigate the matter later.
What sets mediation apart from other types of conflict resolution is that the parties to the conflict actively participate in discussions, negotiations and the decision-making process.
In addition, it is generally much cheaper than litigation, resolutions can be reached faster, and it aims to preserve relationships, which is critical in situations where the parties will or want to continue to work together.
Litigation refers to solving disputes through legal proceedings before a judge or jury within the formal court system. The process involves:
- Presenting arguments
- Conducting discovery
- Presenting evidence
- Using legal precedent
- A judge or jury (or both)
Litigation is an adversarial approach, and each party presents its case with their respective attorneys advocating for their best interest. Court proceedings are public, and court judgments become part of the public record.
A judge or jury delivers a decision, which the parties can appeal depending on the jurisdiction.
Is one method better than the other?
There is no one better way of solving conflict; mediation and litigation play important roles in conflict resolution inside and outside the courtroom.
When deciding which method of conflict resolution to use for a particular conflict, it is wise to evaluate the individual circumstances of the case and, if necessary, seek counsel to ensure that you are protecting your interests in the most effective way possible.
Mediation and litigation offer many benefits, but they also have drawbacks. Every case is different, and it is key to understand the nature of these two methods of conflict resolution and the specifics of the conflict itself before making an informed decision.