Advantages of Mediation:
Mediation is a powerful tool to solve disputes. Here are some of the advantages that it provides to the parties:
Business Language:
Within Mediation, the parties involved in a dispute can resolve it using a “business” approach, in which business strategies and language are used, instead of a “legal” approach, which involves complicated rules and procedures. The parties can feel in a more familiar territory that in a court room.
Confidentiality:
Litigation is a public procedure. The general public and the media as well have access to everything that is being said and done inside the Court room. This is something that business entities can not feel comfortable with, since there are many industry and business secrets that should not be disclosed.
Besides, it is also not suitable for the business people to have the public find out that they are immersed in a lawsuit. This can cause many negative effects, especially if the conflict has to do with quality of the products or the services.
Mediation offers parties a confidential venue in which to resolve their disputes. This allows parties to talk to each other freely without the fear of the outside world finding out about the information that is being revealed.
Lesser costs:
It is of general knowledge that litigating demands a high disbursement of money. And if we also consider how much time this adversarial procedure demands, we can add this to the economical losses. It is hard for companies to invest such a great amount of time and money as litigation requires, and still remain in business. Not every company can afford that and still continue operating as usual. A dispute can even place a company in financial risk after all the money outflow.
Mediation is far less expensive, because the process costs are minimal and the Mediator’s fees are lower compared to the Arbitrator’s fees. Besides, the attorneys need to spend fewer hours in resolving the case and therefore, his fees will also be lower as if he was handling a lawsuit.
For this reason, maybe some attorneys could feel that they can have a drop in their incomes if they advise their clients to mediate instead of litigate or go to Arbitration. Even though the profit potential is not as attractive to them, they must realize the following:
- Clients will be satisfied with the speed resolution and can be confident about hiring the attorney again for future disputes or even for other business cases.
- Clients will prefer the attorneys who offer them the option to solve their disputes in a most effective – less expensive way.
- If they parties end up satisfied with the process, they will recommend the attorney to their friends, and additional clients mean more money too.
- Attorneys will have more time to deal with more cases if they can finish them faster. This means: more cases, more money.
- The Attorneys will end up getting cases that they would not have gotten otherwise, simply because some clients who can not afford expensive litigation may be able to afford a mediated solution.
Speed:
As said before, not only money is saved using Mediation, but time as well. Litigation and even Arbitration demand a great amount of time in its process. This causes parties to exhaust themselves emotionally, physically and even economically (as the expression says: “time is money”). Even after winning the case, the prevailing party will be so weakened that the award rendered could be of no use at that time.
Within Mediation, an agreement can be reached as soon as in one session. Even the date for the first Mediation hearing can be set in less than a week from the date when the application was filed. For all these reasons, we can say that Mediation really offers the parties a fast procedure to solve their disputes, and… is it not what business people need?
Empowerment:
According to Bush and Folger [1], the mediation process gives the parties a boost of empowerment. This means that they realize they have the power to solve their own disputes. They find out what their goals and interests are, they learn how to use their communication, listening and analyzing skills and to brainstorm solutions, they realize they have the power of making their own decisions, even whether to settle the conflict or not. All this causes the parties to feel self worthiness, security, self determination and autonomy as a result of the Mediation process.[2]
Recognition:
Bush and Folger [3] also consider that the Mediation process gives the parties recognition. This means that the other party finally understands what they have been trying to say all the time. Just by hearing and being heard in the mediation process, parties can understand the other party’s point of view. This gives them a better opportunity to be heard and understood themselves.
Flexibility:
Mediation allows parties to agree on every aspect of the process, such as the dates, duration of the sessions, the selection of the mediator or mediators, documents to take with, confidentiality, and many other important issues. This gives the parties total control of the process, something they do not have in other procedures, such as Litigation or Arbitration.
Preserves business relationships:
Mediation is the only dispute resolution method that allows parties to preserve their business relationships while dealing with their problems. What usually happens at the end of an adversarial dispute resolution mechanism is that the parties hate each other; no matter if one of them won, they lost the relationship. When a business man or company can resolve a dispute and continue to do business with the other party, he or it has won a great and valuable asset [4]. Mediation offers this possibility.
Multiple parties:
Sometimes, there are more than two parties involved in a dispute and the presence of every one of them is very important to reach a settlement. Mediation offers an easier way for multiple parties to intervene. It allows multiple parties to talk with each other and reach an agreement that will be satisfactory for each one of them.
Creative solutions:
Only Mediation allows parties to come up with unique solutions to solve their disputes. Solutions that are created by the parties according to their needs and interests that were explored during the process, and tailored for their mutual satisfaction. For example [5], two parties (a construction company and the insurance company who paid for a breach of contract) have a dispute because the construction company still owes the insurance company for the money that it paid the contractor. The construction company has some machines, including an asphalt plant, but does not have the money to pay because it has stop operating after the president of the company died (this was a family company). After exploring and analyzing many options, they decide to joint venture in the asphalt business and split the profits. In this way, the insurance company will be paid monthly with the revenues and the construction company can reassume business. This solution is a win-win example because both parties not only get the best out of the deal, but also keep their relationships.
These sorts of solutions do not come up at Court or Arbitration. Only Mediation offers the tools to achieve them through creativity, which is mostly reached with the Mediator’s help.
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