Mediation is human-focused.
When people decide to engage in litigation, much of the human component of dispute resolution is lost. Unlike litigation, mediation is human-focused. It’s subjective. Its aim is to achieve preferential outcomes and to satisfy the interests of the individuals involved. In mediation, parties may use the law as much or as little as desired. Litigation is focused on establishing facts and applying the law to those facts. If it works as intended, litigation removes much of the human component to achieve a more objective resolution – something that others in a similar situation can rely on later. There’s a place for mediation and litigation (and a combination of both). Often, though, you get to choose your path. Which do you prefer?
People often engage in litigation because they want to gain control of an undesirable situation. Making demands on the other side hasn’t worked. They feel that the only way to get the other side’s attention and to force them to engage is to initiate litigation. Unfortunately, this is often true. After all, if the demanding party hasn’t the will to take meaningful action to correct a wrong, then the other side has little motivation to respond to the demand.
Initiating litigation temporarily serves the purpose of getting control of a bad situation. But the result of staying in litigation too long is relinquishing control. People who are less experienced with litigation often underestimate the burden of the lawsuit that they filed. They may be countersued, required to sift through old boxes of documents, sit for depositions, and so on. What began as a means to correct a wrong deteriorates into a time- and money-consuming monster that is bent on keeping you awake at night. At the end of this cumbersome process, someone else, who likely doesn’t know or understand you at all, will decide your fate. They won’t account for how you or the other side feel about the situation, or what it is that you wanted to achieve in the first place. They won’t resolve the matter based on what you really want or how each side’s interests align. They will decide facts and then apply the law to those facts. You, the person, will most likely be cut out of the analysis. That’s how the law works.
If you want to bring the human component into your options for resolution, mediation is the best path. A good mediation session will include a deep dive into the components that animate the dispute. It will account for the history of the parties. It will incorporate emotions and ultimate goals into the process. In short, it will aim to find resolution based on the people involved. The law invariably works its way into mediation on some level, but it doesn’t need to (and probably shouldn’t) be the centerpiece. In mediation, people decide the outcome that is best for them. That’s control.
To learn more, or to get a conversation started, please contact Marc Menkveld at marc@menkveldlaw.com.