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Mediation versus Litigation

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Introduction

Conflict solving is a multifaceted concept which incorporates various approaches depending on the situation as well as the nature of conflicting parties. Some of these conflict solving approaches include mediation and litigation. Mediation and litigation are the most common approaches in the current society in conflict redress. Though these strategies are most preferred, their approaches towards refining solutions differ from each other. Litigation approach involves the rule of court in realizing a solution to the conflict. All the mandate of decision making in litigation lies on the hands of the judges after the trial. Therefore, the conflicting parties have no say over the ruling made by the judges other than to accept the ruling. On the other hand, mediation incorporates the assistance of a neutral, skilled third party (mediator) who helps the conflicting parties to voluntarily come into consensus. Nevertheless, the mediator does not choose how the conflicting parties will solve the problem. It implies that the mandate of decision making is left on the hands the independent parties (Center for Resolution of Disputes, 2005). The neutral nature of the mediator in the conflict solving gives the mediation approach added advantage over the litigation in terms of effectiveness and efficiency.

There are more benefits to mediations as compared to civil litigation. However, this does not imply that civil litigation has no benefits. The issue is that litigation has got more disadvantages to the parties involved as compared to the benefits realized through mediation. Having in the mind that the responsibility to interpret and make ruling in litigation on the conflicts lies on the hands of the judges while the role of mediators is to help the parties to settle the disputes in fair and equitable manner, the latter offers the parties full participation. Parties involved in mediation can freely express personal opinions and concern whereas in civil litigation, the parties are represented by an attorney in court room unless where the party takes the stand to appear before the trial chamber against the opposing attorney. However, the final ruling in litigation to the conflict is made by the judges and thus, neither the party nor the attorney is liable to determine the outcome. For mediation, the case is quite different since both parties are engaged in decision making and therefore can determine the final resolution developed (Larsson, 2011).

In litigation approach, judges spend a lot of time and resources in investigation and trials to make sure that justice prevails among the conflicting parties. However, the fact that judgmental ruling result in win-lose whereby one party wins the case while the other loses, the solution provided by the court may not fully solve the conflict. In most cases, judgmental ruling imposes the compensation for the disputed party in the litigation and thus, may end up ruining the relationship between the parties in conflict. Mediation through the mediator enables the parties in conflict to negotiate and communicate their concerns and hence voluntarily come in to agreement on how to settle the disputes in a non-adversarial manner in which significant relationships are protected and repaired. Mediation is accepted as a more ethical approach of solving conflicts as compared to litigation due to the fact that it helps negotiate the problem and develop healthy solutions which do not temper with the relationship existing among the conflicting parties.

The court ruling is made in favor of one party and therefore, the party that loses may not be satisfied with the ruling and therefore litigation may not fully settle the disputes. It makes litigation an invalid and an outdated process especially when dealing with family matters (Wells, 2013). Indeed, mediation is very helpful in settling conflicts particularly among members of the family since it gives opportunity to settle the disputes in non-adversarial manner in which significant relationships are protected and repaired.

Indeed, going to court is not a solution to conflicting parties because mediation can be a very helpful process. Though litigation makes use of experts such as attorneys who ensure justice is administered to each party in conflict, sometimes attorneys are unable to communicate well enough to each other and come up with a solution. In such case, a mediator will assist the attorneys or parties to develop an effective negotiation and communication process. The neutral perspective of the mediator in dispute assists the conflicting parties to have a fresh view at the problem and develop potential solutions. Therefore, mediation is the most effective way of settling conflicts among parties.

Civil litigation is a formal process and thus, requires more time before final resolution is made (Wells, 2013). It means that a legal procedure ought to be followed which might be very expensive for the parties in terms of cost and time consumption. Moreover, litigation being a formal approach is inflexible to the parties in conflicts and thus, proves to be hard for the parties to cope with hence in most cases unsuitable for parties. On the other hand, mediation being an informal approach, parties can negotiate verbally on suitable time and place to meet and communicate the problem and come up with potential solutions based on their interest. Therefore, mediation approach is much fast and a cheap conflict resolution process which is very flexible to all parties involved in the conflict.

Typically, in civil litigation, the parties in conflicts go to court to seek remedies for the harm or loss encountered during the conflict. It indicates that civil litigation is a win-lose approach whereby one party wins the case while the other party loses. The losing party is compelled to compensate the losses undergone by the winning party. Mediation can protect parties from such additional problems like punitive awards associated with litigation which may result in further conflicts (Charlton, 2000). In most instances, the losing party feels that the conflict was not fairly resolved and hence may result in hatred among the conflicting parties. In most cases where the parties use litigation to settle the disputes, rapidly the relationship collapses. In contrast to litigation, mediation is a win-win process. This depicts that in mediation, no party loses but both parties communicate and come into agreement how to settle conflicts. Where one party has to compensate the other, they do so willingly protecting the relationship and respect existing among themselves (Zhao, Lynch and Chen, 2010). Therefore, mediation is preferred by many businesses and families in conflict solving.

Mediation is an individual approach which is not subjected to the knowledge of the public or media attention while litigation attracts the attention of the public as well as the media. Therefore, the content of litigation can be use in other subsequent proceedings or court whereas the content of mediation remains confidential to the parties in the conflict and the mediator. Thus, litigation forces secrets of the conflicting parties and the dirty laundry to the public; however, mediation does not allow non-participating parties to be present without the permission of the participants. Thus, mediation helps the conflicting parties keep their reputation and image within the society and hence makes mediation more effective especially where the conflicting such families or business have to keep some issues secret.

Litigation is very helpful when dealing with legal matters which their remedies are already stipulated by the law (Wells, 2013). Once the judges identifies the disputed party in the conflicts, of which the conflict the nature of the conflict is recognized by the court of law, it becomes easy for the judges to make justice ruling on the conflict. However, both legal and non-legal issues can be successfully resolved through mediation approach. Conflicting parties together with the mediator can negotiate and reach to a resolution to both legal and non-legal issues which is acceptable by all participating parties. Mediation can, therefore, resolve psychological issues which might not be possible with litigation. Actually, mediation is more effective in conflict resolution compared to litigation.

The resolutions reached through mediation in most cases are long lasting due to voluntary agreements made by the conflicting parties. However, in some instances, the parties may fail to comply with the agreements reached during mediation. Therefore, litigation is very important to enforce the agreements (Charlton, 2000). Litigation resolutions are short term based. It is because litigation resolution decisions are only limited to the judges and thus, parties concerned may not be put into consideration. However, parties are compelled to accept the ruling which in most cases does not fully settle the conflict. Therefore, despite a few challenges that may arise from mediation, it is a more efficient way in terms of conflict resolutions.

Litigation is centered on constricted issues which are determined by the prefabricated doctrines of the law (Eidsness and Spencer, 2011). Mediation on contrary does not dwell on the limits of the legal discreet claims stated by the parties. It implies that parties in mediation can communicate the relative significance and their concerns free from inflexible court rules. The solution realized in litigation is as well-confined to the pre-defined remedies for the specified breach of law by the defendant.

Litigation process, therefore, does not permit a complete exploration of the underlying factors of the dispute. Mediation conversely, allows a large extent of creative solutions to the conflict between the parties (Zhao, Lynch and Chen, 2010). It shows that in mediation approach, parties are free to explore the issues communicated and investigate the underlying basis for the conflict. Indeed, while the litigation process focuses only the problem and the remedies, mediation approach explores the cause of the dispute and hence, prevents future recurrence of the same dispute. Mediation, therefore, is the most effective way of settling disputes since it solves the present conflict and prevents future disputes unlike in litigation, where the court ruling only declares remedies to the plaintiff for the harm or loss caused.

Even after the ruling of the court in litigation approach, the disputants often remain in the conflict. Due to elevated cost of litigation and the attorneys practice to engage in time costing process, there is genuine pressure of identifying the basis of the conflict. Frequently, the actual issues and the fundamental interests remain unexplored. However, the process of mediation is mainly concerned with the way the disputants are going to reconcile and cope in future as well as finding solution for the specific dispute at hand. Evidently, mediation is a very efficient approach in resolving disputes especially with families and businesses since it is cost effective and provides long-term solutions to the dispute.

Mediation process is a very significant approach to illiterate disputants who are not conversant with the legal jargon, legal rules and indeed the full rituals and mystery that are the focal point of the process of litigation (Agardy, 2009). The sheer formality of litigation in the court system often threatens the disputants hence result in stress. The disputants in litigation rarely meet and therefore, are commonly psychologically thrilling. It may further trigger the conflict. In mediation, the mediator holds the mediation in a place, time and length that is unsuited to the participating parties. The target of the mediator is to eliminate stress which is associated with litigation and create an environment in which disputants are most likely to come up with solutions that they all feel comfortable with. There is no doubt that mediation is the most effective approach, when uneducated parties are involved in dispute due to its informality nature.

Mediation advocates stresses the empowerment provided to the disputants and the community that applies mediations in settling their conflicts. Mediation process encourages the disputants to take the responsibility of developing solution to their disputes through negotiating the problem and reaching an agreement through the implementation of mediation approach (Charlton, 2000). The underlying principle of mediation is that the disputants should manage their lives and avoid letting their lives under the control of the court rules as stated in litigation process. Disputants should be able to admit the penalties of their private decisions and control the results. Mediation also offers disputants with the freedom to withdraw from the proceedings any time they feel like. Though litigation process offers certain extent of control over then disputants, this is not commonly practiced. Once the disputants go into litigation process, the conduct control over the dispute is handed to the court of law. The disputant acts as ordered by the court of laws and litigation procedures. It implies that the disputant has no choices in the dispute verdict and hence nullifies the disputants self-empowerment process and litigation is a wasteful means of settling disputes.

Litigation does not recognize the legal norms of collision in the midst of person oriented norms. Personal oriented norms in litigation are given secondary significance by the lawyers and court judges. Therefore, in litigation, court rules and negotiation of lawyers are lucid and governed by court rule. Mediation however, highly recognizes values and personal norms. Though in litigation, personal norms are not appreciated, they are indeed significant to the disputants in realizing an equitable and a fair settlement within the framework of the problem. For instance, in a family mediation, financial instability might be considered as a personal norm. In litigation process, the personal norm would not be recognized in the family court as a legal norm and thus, the resulting ruling of the litigation process will be unprincipled and unfair to the disputants (Parselle, 2005). Therefore, litigation ruling in most cases is an ineffective resolution approach especially when the matter in hand involves personal norms.

Simply, litigation approach is an inappropriate solution for the broad neighborhood conflicts. In fact, the application of mediation is the effective conflict resolution approach in the deferent society justice programs all over the world. In many cases, litigation approach categorizes many neighborhood conflicts as minor (Wells, 2013). However, in reality, these minor conflicts may be bitter to an extent that they can exhaust the resources of the community in long term. Mediation manages community conflicts which no court in litigation can resolve. There is no court over the world can resolve conflict arising from elderly members in the community and thus, only mediation can be used to settle such disputes.

Conclusion

In general, considering the benefits of and acknowledging the limitations of the both litigation and mediation, mediation is the most effective and efficient approach of resettling disputes. It is because mediation is fast and cost effective unlike in litigation which takes the parties in conflict quite some time before the court makes ruling in respect to the dispute. Moreover, mediation approach allows conflicting parties to communicate and reach to an agreement which is acceptable by both parties unlike with litigation which does not provide full settlement of the conflicts since it is much concerned with remedies to the disputed party. Mediating is more effective process of conflict resolution due to its flexibility and informality. Flexibility encourages disputants to find out the basis of the conflict and develop solutions based on their interest. Informality helps the conflicting parties to make decisions which protect their relationship as well as further problems such remedies which are associated with litigation.   

Mediation provides the disputants with an alternative, and more freedom choice for settling disputes. However, mediation does not eliminate litigation from the dispute scene nor does it make lawyers superfluous. Some cases cannot be settled through mediation and therefore, litigation is still much significant. Therefore, mediation is not the solution to all disputes, but is an efficacious concept which can save people money and time as well as psychological torture that is most associated with the litigation process. Application of mediation can do a lot in improving the life standards in the society through encouraging interaction and empowering people to have control over their lives.

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