Mediation has become one of the most common ways of resolving legal disputes in Tennessee; it is required in certain types of legal disputes, including divorce actions and construction litigation, before the parties can ever proceed to trial. Mediation and arbitration are two types of alternative dispute resolution techniques that are available to help parties avoid litigation. Mediation differs from arbitration in that mediation allows the parties, with the help of a neutral facilitator, reach an agreed upon settlement or resolution of their dispute. Arbitration, on the other hand, is similar to an actual court hearing and allows for an arbitrator, or arbitration panel, to reach a decision after hearing evidence on the issues in dispute. Arbitration can be either binding or non-binding, depending upon the parties’ preference.
Value in Mediation
Litigating disputes in the court system often includes several negative aspects, including: (1) uncertainty of the outcome; (2) lengthy delays in concluding the litigation; (3) expense of litigation and preparing your case for trial; and (4) the stress and anxiety of the trial.
Mediation avoids these problems by: (1) letting the parties to the dispute control the outcome rather than leaving it in the hands of a judge or jury; (2) bringing the issue to a prompt and final conclusion; (3) avoiding the expense of trial and trial preparation; and (4) discussing and resolving the issues in dispute in a less formal, less stressful, and less confrontational environment.
It has been said that trials are like surgery – it is best not to have one unless you absolutely need it. Mediation is an excellent alternative to a trial.
A Simplified Process
In a mediation, the parties typically meet in an attorney’s office or oftentimes in the mediator’s office, to discuss the issues to be resolved and analyze the risks and possible outcomes of proceeding with litigation or going forward to trial. The mediator, who is ethically bound to be neutral, facilitates settlement discussions between the parties. The parties sometimes meet jointly with the mediator and then separate, allowing the mediator to discuss the issues privately with each side. Once an agreement has been reached, the parties enter into a written, mediated settlement agreement, signed by all parties, their attorneys (if they are represented), and by the mediator. This resolves the dispute and brings it to a final conclusion. There is no court hearing, no trial, and no appeals are involved. The courts will enforce a written, mediated settlement agreement if one party tries to revoke their prior agreement.
Making the Right Choice
Mediation involves compromise. It is not about winning or losing your case. It is solely about reaching a fair settlement or resolution of the dispute in a manner that each side can agree with. A mutually satisfactory resolution normally requires the parties to adjust their positions. Neither side can be forced to agree to any particular settlement.
Choosing the right mediator is an important part of the mediation process. Mediators need to be able to encourage the parties to participate fully in mediation and to educate them about the process. This requires the mediator to have an understanding of human behavior, an ability to empathize when necessary with the parties, and most importantly, to have good communication skills.
If you have become involved in any type of legal dispute, you should consider mediation as an alternative dispute resolution technique.