Mediation
When is mediation preferable to litigation?
Mediation is a procedure for sustainable conflict resolution that relies on cooperative dialogue to improve or restore communication and relationships between parties. In contrast, litigation aims to decide a legal dispute by making a binding decision without addressing the underlying interpersonal conflict. Therefore, mediation is particularly suitable in cases where the relationship between the parties is intended to continue, and a lasting, viable solution is sought.
Distinctive Characteristics of Litigation and Mediation:
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Litigation as a confrontational procedure is characterized by the assumption that a party is right if it presents facts that support its claim. As a result, facts embellished excessively to strengthen one's position, which can negatively impact the personal relationship between the parties involved. In contrast, mediation emphasizes respectful communication and a cooperative negotiation approach, aiming to foster and restore the relationship between the parties.
Another significant difference is that litigation only considers evidence that fits within the framework of legal claim norms.
Accounts that do not meet these criteria are disregarded. In mediation, however, legal claims and evidence are irrelevant. Instead, the entire conflict is taken into account, with emphasis on the interests and needs of the parties. In litigation, there is little room for mutual understanding, and such considerations can even be strategically disadvantageous
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In litigation, the conflict is handed over to a judge, who is responsible for deciding the case based on applicable law. (Note: In employment litigation, settlements are often reached, where the parties negotiate a compromise based on the likely outcome of the lawsuit.). Mediation, on the other hand, is a voluntary and self-directed process in which the parties independently determine the resolution process. Unlike litigation, mediation offers a much broader and more creative range of solutions. Additionally, since the solution is developed by the parties themselves—not by a third party—there is often a stronger commitment to adhering to the agreed-upon terms.
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Unlike the formally structured litigation process, mediation is inherently informal and thus more flexible. Without strict deadlines to adhere to, conflicts can typically be resolved more quickly.
Conclusion & practical tipp
Unlike litigation, which aims to formally decide a legal dispute, mediation seeks to resolve conflicts through an agreement that satisfies all parties involved. It is particularly preferable to litigation when the (collegial, economic, neighborhood, sports, etc.) relationship between the parties is intended to continue and the conflict needs to be resolved in a durable and sustainable manner. Instead of allowing a conflict to simmer unresolved in the background due to the understandable concern that litigation might further strain the relationship, it is worth considering whether mediation might be an appropriate method.
Moreover, mediation is highly flexible due to its informal nature and can typically be concluded more quickly than litigation. This makes mediation particularly attractive in situations where a swift resolution is needed, which might not be feasible through the often lengthy litigation process.
Author of this article: Janina Aue, Lawyer & Mediator
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