Litigation is used across the world to settle disputes within civil and criminal justice systems. This is a way of coping with legal problems that require a lot of time, resources and emotional commitment.
Civil litigation starts with the pre-trial process, in which parties negotiate with each other to obtain documentary evidence, also referred to as disclosure, and determine the validity of their respective claims. It is accompanied by a procedure for the lengthy planning of cases involving legal members collecting proof according to specified guidelines and instructions.
When a trial begins, each party submits the facts, and the judge gives a binding judgement. Nonetheless, the judgement offers no certainty on the part of the winning party in terms of financial recovery, because defendants or claimants frequently escape the repercussions of unfavourable judgements by breaking up businesses or properties and claiming bankruptcy.
Mediation offers a more efficient form of dispute mediation as opposed to litigation. When an agreement is made to use mediation, the parties will effectively continue the process at the next appropriate time. By comparison to litigation, mediation hearings are not embroiled by evidence-based convolutions or procedures, nor are they governed by lawyers appealing to a mediator. Because even the most complicated conflicts can be settled within one or two days of mediation, there is a substantial decrease in both time and financial costs.
The mediation process is also oriented towards finding a mutually satisfactory solution for all parties. The third-party mediator is there simply to facilitate the dialogue, and does not assume the position of a decision-maker, which all parties maintain. Participants are permitted to communicate with each other directly, with or without advice, and to partake in a frank and open discussion on the issues. This individual nature of the engagement by which parties can place their complaints among themselves and be the judges of their own conflict means that long-term business relationships can be maintained. Settlements consisting of unusual solutions such as an apology or an explanation are not uncommon, and therefore allow parties to continue to work together in the future.
In fact, mediation offers a different sort of settlement than litigation. As stated, a court of law is empowered to pass an order that must be complied with by one or both of the parties within a defined period. When the parties do not agree to these orders and decisions, disciplinary actions are often required to compel compliance. Parties can be especially reluctant to abide by decisions they find unjust or unreasonable. Under such a case, it can take a long time before the winning party can finally take advantage of the relief given or recover the costs of the proceedings.
The fact that any negotiated settlement is subject to the parties ‘ consent may be a justification to argue that the parties are more likely to stick to the terms of a settlement. Parties commit only on what they find fair and rational, thereby greatly minimizing the need for compliance proceedings. This adds to the overall speed of process by which not only the conflict itself is resolved expeditiously, but also follows the resolution swiftly. However, negotiated agreements are reported in written form as a way of preserving the rights of both parties. Therefore, the arrangement will typically be executed as a contract in the unusual case under which the need for compliance actually occurs.
Mediation also provides a much cheaper alternative to litigation. Litigation costs far outweigh any other method of dispute resolution. Rules of evidence in court demand that legal counsel be actively involved in the compilation and presentation of evidence. Both sides would have incurred substantial expenses during the proceedings prior to making a single request.
At the other hand, mediation may also take place without the presence of legal counsel. Also when legal counsel is involved, he or she is simply expected to assist parties in the course of the mediation rather than gather information or make claims before a judge or arbitrator. The minimal capacity in which he or she is contributing to the cycle holds costs fair. Moreover, mediation in the pre-phase of the protocol involves no investment on behalf of either party.
These factors, along with the 85% success rate mediation, demonstrate the need for businesses and individuals to abandon conventional litigation practice and pursue efficient and cost-effective means of dispute resolution. In relieving the burden of litigation on the courts, this would help not only corporations and individuals but the criminal justice system as a whole.