Those who know little about mediation might think it competes with what solicitors and the courts have to offer. This is understandable given that solicitors and mediators often compete for the same work. In reality the services are complementary to each other.

As a mediator and a non-practising solicitor, I know from experience that mediation and litigation each have a place. So here’s my guide (in no particular order) suggesting 7 reasons to choose mediation and 3.5 reasons to choose court.

7 Reasons to Choose Mediation

1. You control the outcome

If a court outcome is so obvious, why can’t the lawyers agree it? If a court outcome is so uncertain, why bother going there? Mediation allows the parties to keep complete control of the outcome. They settle only when there is a mutually acceptable proposal on the table.

2. Relationships

A frequently under-appreciated consequence of disputes, is the effect on the quality of any relationship after the dispute has been resolved. Whether the disputants are parents, work colleagues, neighbours or businesses, mediation nurtures relationships in a way which helps to maintain the parenting, team working, community and commercial benefits.

3. Time

Mediation allows parties to resolve issues without the delay of other approaches. On average, mediated outcomes are reached in 1/3 of the time of non-mediated outcomes.

4. Cost

Sharing the cost of a single professional  to manage a dispute, costs on average 1/16 of the cost of each party engaging a professional to manage it for them – more so when the two managers cannot agree on how matters should be progressed.

5. Confidentiality

Mediation is always confidential. Court proceedings tend to be a matter of public record.

6. Better Outcomes

In mediation, outcomes are always win-win -parties wouldn’t settle if they didn’t find a proposal acceptable. In litigation, outcomes tend to be win-lose, lose-win or lose-lose, but never win-win.

7. Recognition

An under-valued benefit of mediation is the opportunity it provides to listen and be heard. This enables both parties to understand each other’s points of view. Understanding is at the core of resolving disputes.

3.5 Reasons to Choose Court

1. Protection

If a person or property needs protection from immediate harm, or if a person or property is about to be removed from the jurisdiction, a court is the only place that can make a protective order.

2. Need for Adjudication

It is relatively rare, but in some cases it will not be clear which law governs a dispute. For example, where court actions are started in two separate jurisdictions.  This is where clear adjudication by a judge is necessary.  

3. Inability to Make Decisions

Even with solicitors or others supporting them, some people may be temporarily or permanently unable to make decisions for themselves. Judges can make decisions.

3.5 Unwillingness.

If only one party is willing to mediate, mediation cannot happen. So why is unwillingness only half a reason? Because, it is possible to create a mediation process that is safe for virtually any situation. And it is possible for even the most anxious participant to find reassuring support from a lawyer. So there really should be very few who would choose litigation over mediation.

Yet litigation will remain attractive to a minority who want to emotionally and financially bully the other party. But even in these cases, if the good lawyers refused instructions, the bullies would only have the bad lawyers to choose from. We might then see a cultural change away from adversary and towards problem solving approaches.

I am Stephen G Anderson. I am a professional mediator.

Stephen G Anderson, family mediator

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