Mediation Rather Than Formal Court Action

Alternatives to the use of litigation for dispute resolution are more accepted by attorneys and businesspersons

. There are many different methods of alternative dispute resolution, but the focus of this article will be on mediation as a dispute resolution tool.

What can be expected in the mediation procedure? All opposing persons initiate proceedings with a neutral third person (the mediator) who facilitates their discussion about the dispute toward a solution to the conflict. No one wins and no one loses in mediation because the parties voluntarily agree to terminate their disagreement. The role of the court in mediation may be to enter an order making the terms of the parties mediated agreement binding on them, but the court itself does not take a role in formulating the terms of the final outcome. Of great importance is the point that while a court may mandate mediation as a first attempt to resolve a dispute, the court will not enter an order requiring that the case proceed through a final resolution in mediation. They must simply make a good faith effort follow the mediation process to explore a potential resolution of the case.

In recent years, mediation has more commonly been used in family law matters (in fact, local court rules requires that people first attempt to resolve custody disputes with mediation). Mediation is an appropriate dispute resolution tool for many other types of disputes such as construction litigation, personal injury disputes and employment matters. A construction dispute that might otherwise be litigated in court over a period of years could possibly be resolved through a few sessions of mediation. Mediation is not guaranteed to resolve problems. When it is successful, however, the savings to the parties in terms of time and money can be tremendous.

While some mediators are attorneys, some do not have a formal legal background. If the mediator is a lawyer, he/she must not engage in the rendition of legal advice in the course of the mediation. Rather, the mediator facilitates the communication between the parties. He or she listens to both sides of the story, helps identify the issues that need to be resolved, and guides the parties to communicating and coming to a mutual agreement for resolution. The parties respective attorneys may be present at the mediation, but the mediator operates outside the influence of the attorneys.

It takes much more time to litigate a case than proceed to final resolution through mediation. The time between filing a lawsuit and the trial date in Stephenson County, Illinois can be up to two years depending on the case. Conversely, a mediation session may last only a few hours. Mediators fees vary greatly, but are generally less than attorneys hourly rates. Sometimes, the parties must split the mediators fees equally. Therefore, mediation is usually a significantly less expensive alternative to litigation. A lawyer can assist you in determining whether mediation may be of help to resolve your dispute or answer any questions you may have regarding the process.

by: Ralph E. Elliott

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