Mediation vs Litigation essay

Mediation vs Litigation essay

Conflict solving is a multifaceted concept which incorporates various approaches depending on the situation as well as the nature of conflicting parties.

Conflict resolution is a complex concept that requires a multifaceted approach that is tailored to the specific situation and the parties involved. Two commonly used approaches are mediation and litigation. While both methods aim to resolve conflicts, their strategies for achieving solutions differ.

Litigation involves using the court system to reach a resolution. The decision-making power lies solely with the judges, and the conflicting parties have no say in the ruling. They must accept the decision made by the court. In contrast, mediation involves a neutral third party, the mediator, who helps the conflicting parties reach a voluntary agreement. The mediator does not dictate the solution, leaving the decision-making power in the hands of the independent parties.

The mediator’s neutral role gives mediation an advantage over litigation in terms of effectiveness and efficiency. While litigation can be effective in certain situations, mediation is generally preferred because it is less adversarial and allows the parties to maintain more control over the outcome.

There are more benefits to mediations as compared to civil litigation. However, this does not imply that civil litigation has no benefits. The issue is that, litigation has got more disadvantages to the parties involved as compared to the benefits realized through mediation. Having in the mind that the responsibility to interpret and make ruling in litigation on the conflicts lies on the hands of the judges while the role of mediators is to help the parties to settle the disputes in fair and equitable manner, the latter offers the parties full participation. Again, parties involved in mediation can freely express personal opinions and concern whereas in civil litigation, the parties are represented by an attorney in court room unless where the party takes the stand to appear before the trial chamber against the opposing attorney. However, the final ruling in litigation to the conflict is made by the judges and thus neither the party nor the attorney is liable to determine the outcome. For mediation, the case is quite different since both parties are engaged in decision making and therefore can determine the final resolution developed (Larsson, 2011).

In litigation approach, judges spend a lot of time and resources in investigation and trials to make sure that justice prevails among the conflicting parties. However, the fact that judgmental ruling result to win-lose whereby one party wins the case while the other loses, the solution provided by the court may not fully solve the conflict. In most cases, judgmental ruling imposes the compensation for the disputed party in the litigation and thus may end up ruining the relationship between the parties in conflict. Mediation through the mediator enables the parties in conflict to negotiate and communicate their concerns and hence voluntarily come in to agreement on how to settle the disputes in a non-adversarial manner in which significant relationships are protected and repaired. Mediation is accepted as a more ethical approach of solving conflicts as compared to litigation due to the fact that it helps negotiate the problem and develop healthy solutions which do not temper with the relationship existing among the conflicting parties.

Litigation, while it may have its advantages in some cases, is not always the best approach to resolving disputes, especially in family matters. The court ruling typically favors one party, leaving the other dissatisfied and the conflict unresolved. Mediation, on the other hand, provides a non-adversarial opportunity to settle disputes while preserving and repairing significant relationships.

While litigation may involve experts such as attorneys to ensure justice is served, it can be a slow and inflexible process. Attorneys may struggle to communicate effectively with one another, resulting in delays and added expenses. A mediator can assist attorneys or parties in developing an effective negotiation and communication process, leading to potential solutions. The mediator’s neutral perspective provides the conflicting parties with a fresh view of the problem, making mediation the most effective way of settling conflicts.

Unlike litigation, which is a formal process requiring a legal procedure and can be costly and time-consuming, mediation is informal and flexible. Parties can negotiate verbally and choose a suitable time and place to meet and discuss the problem and potential solutions based on their interests. Therefore, mediation is a fast, cost-effective, and flexible conflict resolution process that benefits all parties involved in the conflict.

Typically, in civil litigation, the parties in conflicts go to court to seek remedies for the harm or loss encountered during the conflict. This indicates that civil litigation is a win-lose approach whereby one party wins the case while the other party loses. The losing party is compelled to compensate the losses undergone by the winning party. Mediation can protect parties from such additional problems like punitive awards associated with litigation which may result to further conflicts (Charlton, 2000). In most instances, the losing party feels that the conflict was not fairly resolved and hence may result to hatred among the conflicting parties. In most cases where the parties use litigation to settle the disputes, rapidly the relationship collapses. In contrast to litigation, mediation is a win-win process. This depicts that, in mediation, no party loses but both parties communicate and come into agreement how to settle conflicts. Where one party has to compensate the other, they do so willingly thus protecting the relationship and respect existing among themselves (Zhao, Lynch and Chen, 2010). Mediation is therefore preferred by many businesses and families in conflict solving.

Mediation is an individual approach which is not subjected to the knowledge of the public or media attention while litigation attracts the attention of the public as well as the media. Therefore, the content of litigation can be use in other subsequent proceedings or court whereas the content of mediation remains confidential to the parties in the conflict and the mediator. Thus, litigation forces secrets of the conflicting parties and the dirty laundry to the public; however, mediation does not allow non-participating parties to be present without the permission of the participants. Mediation thus helps the conflicting parties keep their reputation and image within the society and hence makes mediation more effective especially where the conflicting such families or business have to keep some issues secret.

Litigation is very helpful when dealing with legal matters which their remedies are already stipulated by the law (Wells, 2013). Once the judges identifies the disputed party in the conflicts, of which the conflict the nature of the conflict is recognized by the court of law, it becomes easy for the judges to make justice ruling on the conflict. However, both legal and non-legal issues can be successfully resolved through mediation approach. Conflicting parties together with the mediator can negotiate and reach to a resolution to both legal and non-legal issues which is acceptable by all participating parties. Mediation can therefore resolve psychological issues which might not be possible with litigation. Actually, mediation is more effective in conflict resolution compared to litigation.

The resolutions reached through mediation in most cases are long lasting due to voluntary agreements made by the conflicting parties. However, in some instances, the parties may fail to comply with the agreements reached during mediation. Litigation therefore is very important to enforce the agreements (Charlton, 2000). Litigation resolutions are short term based. This is because litigation resolution decisions are only limited to the judges and thus parties concerned may not be put into consideration. However, parties are compelled to accept the ruling which in most cases does not fully settle the conflict. Therefore, despite a few challenges that may arise from mediation, it is a more efficient way in terms of conflict resolutions.

Litigation is centered on constricted issues which are determined by the prefabricated doctrines of the law (Eidsness and Spencer, 2011). Mediation on contrary does not dwell on the limits of the legal discreet claims stated by the parties. This implies that parties in mediation can communicate the relative significance and their concerns free from inflexible court rules. The solution realized in litigation is as well confined to the pre-defined remedies for the specified breach of law by the defendant.

Litigation process therefore does not permit a complete exploration of the underlying factors of the dispute. Mediation conversely, allows a large extent of creative solutions to the conflict between the parties (Zhao, Lynch and Chen, 2010). This shows that, in mediation approach, parties are free to explore the issues communicated and investigate the underlying basis for the conflict. Indeed, while the litigation process focuses only the problem and the remedies, mediation approach explores the cause of the dispute and hence prevents future recurrence of the same dispute. Mediation therefore is the most effective way of settling disputes since it solves the present conflict and prevents future disputes unlike in litigation where the court ruling only declares remedies to the plaintiff for the harm or loss caused.

Even after the ruling of the court in litigation approach, the disputants often remain in the conflict. Due to elevated cost of litigation and the attorneys practice to engage in time costing process, there is genuine pressure of identifying the basis of the conflict. Frequently, the actual issues and the fundamental interests remain unexplored. However, the process of mediation is mainly concerned with the way the disputants are going to reconcile and cope in future as well as finding solution for the specific dispute at hand. Evidently, mediation is a very efficient approach in resolving disputes especially with families and businesses since it is cost effective and provides long-term solutions to the dispute.

Mediation process is a very significant approach to illiterate disputants who are not conversant with the legal jargon, legal rules and indeed the full rituals and mystery that are the focal point of the process of litigation (Agardy, 2009). The sheer formality of litigation in the court system often threatens the disputants hence result to stress. The disputants in litigation rarely meet and therefore are commonly psychologically thrilling. This may further trigger the conflict. In mediation, the mediator holds the mediation in a place, time and length that is unsuited to the participating parties. The target of the mediator is to eliminate stress which is associated with litigation and create an environment in which disputants are most likely to come up with solutions that they all feel comfortable with. There is no doubt that mediation is the most effective approach when uneducated parties are involved in dispute due to its informality nature.

Mediation advocates stresses the empowerment provided to the disputants and the community that applies mediations in settling their conflicts. Mediation process encourages the disputants to take the responsibility of developing solution to their disputes through negotiating the problem and reaching an agreement through the implementation of mediation approach (Charlton, 2000). The underlying principle of mediation is that the disputants should manage their lives and avoid letting their lives under the control of the court rules as stated in litigation process.  Disputants should be able to admit the penalties of their private decisions and control the results. Mediation also offers disputants with the freedom to withdraw from the proceedings any time they feel like. Though litigation process offers certain extent of control over then disputants, this is not commonly practiced. Once the disputants go into litigation process, the conduct control over the dispute is handed to the court of law. The disputant therefore acts as ordered by the court of laws and litigation procedures. This implies that the disputant has no choices in the dispute verdict and hence nullifies the disputants self empowerment process and therefore litigation is an wasteful means of settling disputes.

Litigation disregards personal norms and focuses solely on legal norms, which is often prioritized over the values and personal norms of the disputants. In contrast, mediation places a high value on personal norms and recognizes their significance in achieving a fair and equitable resolution. For example, in a family mediation, financial instability may be considered as a personal norm that needs to be taken into account. In contrast, in a litigation process, personal norms are not considered as legal norms, resulting in an unjust and arbitrary ruling that may not fully address the needs and interests of the disputants. Therefore, litigation is often an ineffective approach to resolving disputes, especially when personal norms are involved.

Simply, litigation approach is an inappropriate solution for the broad neighborhood conflicts. In fact, the application of mediation is the effective conflict resolution approach in the deferent society justice programs all over the world. In many cases, litigation approach categorizes many neighborhood conflicts as minor (Wells, 2013). However, in reality, these minor conflicts can be so bitter to an extent that they can exhaust the resources of the community in long term. Mediation manages community conflicts which no court in litigation can resolve. There is no court over the world can resolve conflict arising from elderly members in the community and thus only mediation can be used to settle such disputes.

In summary, after examining the advantages and disadvantages of litigation and mediation, mediation emerges as the superior method of resolving disputes. It is cost-effective and efficient, and allows conflicting parties to communicate and reach an agreement that is mutually acceptable. Mediation is also flexible and informal, which encourages the disputants to come up with solutions based on their interests while preserving their relationship. However, mediation cannot replace litigation entirely, as there are some cases where litigation remains necessary. Nonetheless, mediation can have a positive impact on society by improving communication and empowering individuals to take control of their lives. Overall, while mediation may not be the ultimate solution to all disputes, it is a valuable tool that can save time, money, and alleviate psychological distress associated with traditional litigation.

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