In virtually any type of civil matter there are always options for settling the issue out of the courts. Alternative dispute resolution, more simply known as ADR, can include anything from negotiating directly with the other party through to arbitration, which involves having someone listen to both parties, ask questions, then write a binding agreement on how to settle the issue at hand.
In the middle of these two extremes of the ADR spectrum is mediation. In mediation a third party neutral works as a facilitator of the communication to help the people involved in the disagreement reach a mutually agreeable solution. Depending on where you live a mediator may be an attorney but they also may be a non-attorney that is specially trained in communication and conflict management.
As a non-attorney mediator I often get people ask me how hiring yet another professional is going to save them money. In reality mediation can help save money both in the short and long term for several reasons.
Most of the people that return to court after an initial ruling are there because they either didn’t understand the settlement order or they didn’t fully develop the problem and the settlement is not comprehensive enough. Typically this occurs because not all information comes forward in a civil trial or hearing. In litigation the judge or jury only hears what the lawyers bring forth in direct testimony or cross examination. In mediation a good mediator will provide options for the parties involved to talk about the whole picture, without the same restrictions on evidence and testimony that are present in the courtroom.
Fewer trips to court for clarification of orders and settlement terms means lower post judgment costs to the individuals.
A judge or jury is limited to the creativity of the solutions or settlements they can propose. They have to go by the legal statutes and precedents set in prior similar cases. During meditation the parties can mutually agree on unique and very individual types of resolutions. These agreements are typically very comprehensive, with the mediator acting to “reality check” how the agreed upon resolution will actually work for everyone involved. This checking in with the parties before agreeing upon a resolution means that potential problems in following through on the agreement will be addressed in the agreement and limited in the future.
More comprehensive agreements and detailed resolutions mean less chance of having to return to court to modify the order or settlement.
People that are allowed to create their own solutions, fully understand both the problem as well as the resolution and take the time to hear and be heard are more likely to support the resolution. This is because as humans we want to have control of our own destiny, not have someone else tell us what we have to do. When people develop their own solution, test how it will work for them and have input into the process they are less likely to look for loopholes in the final agreement.
When all parties follow through there is no need to go back to court, saving money and creating a method of resolving further problems without the need to involve the legal system.
