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What to consider before taking a complaint to trial

The prospect of fighting out an issue in court is intimidating for most people; and that’s understandable. The average person is not used to going to court, working in legal jargon or being spoken to by an attorney. Fortunately, court is not always required. In many instances a complaint can be settled via mediation.

In mediation, the parties involved meet with a neutral third party – the mediator – and try to resolve their problem through negotiation. The mediator is there purely to facilitate productive discussion. They are not a judge and they do not advocate for one side or the other.

There are several reasons individuals may choose to pursue mediation ove litigation. There are also a few reasons they may not. These are among the most common:

Pros of mediation

Quicker A court date can be scheduled out weeks, months or longer, and may take multiple sessions. Mediation can foster resolution in a single session, in many cases, and the meetings can be held as soon as the involved parties’ schedules allow.

Cheaper There are no shortage of costs in litigation. Since mediation is a negotiation between two people, there are no court fees, attorney fees or other costs that come with court.

Private Where court proceedings are matters of public record, what happens during mediation remains sealed. This is a valuable aspect when business or exceptionally personal matters are being hashed out.

Creative solutions The law can be quite rigid in its verdicts. The parties involved in mediation have quite a bit more freedom when they decide their resolutions. Few restrictions means unique outcomes that would probably not be considered in court.

Collaborative As stated above, mediation is a collaboration between parties. They hear each other out and find resolution themselves with the facilitation of the mediator. This can help preserve relationships down the road.

Cons of mediation

Collaborative While this is a pro for some, it is a con for others. Sometimes involved parties are simply unable to constructively, or even civilly, negotiate with each other. This is often a factor in hotly contested divorces or high stakes business matters.

Enforceability When an agreement is met by the parties, the mediator will draft the terms in writing. Unfortunately, if one party violates the terms, there may be little that can be done. A breach of contract is likely to be the hardest penalty the violator will face, otherwise additional mediation would be an option.

Negotiations drag While it is true that mediation can resolve issues in as little as one meeting, sometimes parties will not waver in negotiations. When this happens, it can make mediation drag on.

Two-way resolution Mediation works best when each party is willing to give something up to receive what they want. This is hard contrast to a court case which can yield a large resolution to one party and nothing to the other.

There are several things an individual must consider before taking a matter to court. Mediation can be a powerful tool to help all involved get through a difficult period, but it comes with certain draw backs. Consider your options and pursue what works best for you.

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The Law Office of Gregory D. Smith

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