ADR: Mediation As An Alternative to Litigation

Updated: Aug 20

Mediation is the process where parties involved in a dispute meet with a neutral third party - the mediator - to negotiate the terms of and try to resolve the dispute. Mediation is a method of alternative dispute resolution (ADR) available to parties involved in a lawsuit. However, mediation can also occur before the dispute is filed with the court.

The mediation process can be mandated by courts. However, mediation remains “voluntary” in that neither party is required to come to an agreement. Unlike arbitration or even trial, the mediator does not have the power to make a decision for either party involved but, rather, serves as a facilitator to try and help the parties come to a mutually acceptable resolution.

There are tangible benefits of choosing mediation over traditional litigation. The cost of mediation is less than costs incurred for litigating a dispute. Mediation offers a timely resolution over traditional litigation. Parties can schedule a mediation generally within weeks of a decision to mediate or a court order to mediate. Mediations are held privately, meaning there are no spectators as there would be in a trial, and the discussions held in the mediation are not reported or repeated by the mediator to another party. Should the parties choose a settlement during the mediation process, the Settlement Agreement is the only record of the mediation proceeding. Mediators serve as a neutral party in assisting the parties - mediators do not champion one party, position or side over another. Mediation often includes “win-win” solutions, which may promote healing when one or both parties feel aggrieved.

A useful acronym the mediator may employ in the mediation process is BADGER. BADGER outlines the mediation process, and allows for modifications and interventions where necessary to facilitate the progress of the mediation.

B - Begin the mediation

A - Accumulate the facts and information of the dispute

D - Develop an agenda and define the issues at hand

G - Generate momentum

E - Elect separate sessions (non-confrontational meetings)

R - Resolve and reach closure

During mediation, parties will consider their Best Alternative To a Negotiated Agreement (BATNA) or the most advantageous alternative that a negotiating party can take if negotiations fail and an agreement cannot be reached. The mediator often asks each party, via a separate session, about their BATNA and case matter pain points. Doing so helps the parties understand that litigation may be risky business.

Pacific Apex attorneys are trained in several ADR techniques including mediation, arbitration, negotiation, and workplace facilitation. In fact, some of our attorneys have earned advanced legal degrees in ADR.

If you have a dispute and are in need of legal assistance; are an employer, employee, government agency, or other business and would like information on alternative dispute resolution training; or would like to schedule a consultation with our attorneys regarding alternative dispute resolution options, please contact Pacific Apex Law Group at (888) 609-8718. Our Alternative Dispute Resolution practice group is looking forward to speaking with you.

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