Association of South West Mediators
Email: enquiries@aswm.org.uk
Telephone: 01823 445 566

ASWM is a member of the Civil Mediation Council and is registered as a provider of Civil and Commercial mediation as well as Workplace mediation

CMC.png

© 2008 - 2019 Association of South West Mediators.

All rights reserved.
Designed by The Branding Coach

How Mediation Differs from Litigation

Once negotiation fails, many parties involved in disputes use litigation to arrive at a definitive outcome. Traditional litigation has a number of drawbacks:

  • It is often costly - financially, organisationally and emotionally

  • It is very often time consuming, not only for the immediate parties involved, but also for many other individuals - witnesses, colleagues, family members, experts and advisers

  • The outcome will usually be based on a strict interpretation of the law.

  • The process involves an analysis of the past, though it can make orders governing the future.

  • The outcome at trial depends upon the judge’s interpretation of the evidence through their impression of reliability of the witnesses.

  • It is adversarial.​ Whatever the judge’s decision, the parties may remain in conflict.

  • A judge’s decision is not final but may be appealed, which puts all the parties through a similar time-consuming and expensive process with an uncertain outcome.

  • Litigation frequently does not give an opportunity to the parties to express themselves, and the wider interests and needs of the parties are seldom addressed by this conventional approach. In particular, factors outside the scope of the matter under litigation are not able to be considered by the court, even though they may be fundamentally important to the parties.​

By contrast

  • Mediation is voluntary, (though refusal to mediate can give rise to cost sanctions).

  • Courts actively encourage parties to consider mediation.

  • Mediation is confidential and 'without prejudice' (nothing said in the mediation is admissible as evidence in legal proceedings).​

  • Any settlement reached is binding once put into writing and signed by the parties.

  • Throughout the mediation process, decision-making rests with the parties. During mediation, parties are helped to identify and analyse issues, reduce obstacles to communication, recognise information needs. Mediators, who are neutral to all parties, explore alternatives and focus on the needs and interests of those most affected by the dispute. Unlike court proceedings, mediation involves the direct participation of the parties, who often work alongside instructed legal representatives.​

 

Mediation has a number of advantages over litigation processes:

  • The Future – it encourages the parties to focus on the future rather than just apportioning “blame” for the past.

  • Quick - most mediations are arranged within a few weeks (or even more quickly) and the formal mediation session usually lasts for only one or two days, although family mediations can last longer.

  • Cost effective - compared with litigation, mediation is a less expensive route to resolving disputes.

  • Gives parties control over the process and the outcome.

  • Informal and flexible - the process is free of the restrictive Court procedures and can be adapted to meet the needs of the parties.

  • Can run alongside litigation or you may prefer to put the litigation process 'on hold' while you mediate.

  • Can maintain relationships far more effectively than litigation. Therefore it is particularly effective where the parties will have an ongoing relationship once the dispute is resolved.

  • A wide variety of settlement options can be achieved in mediation, not just monetary settlements.