After a lawsuit goes all the way through trial, even the winners may feel they have lost. The costs and time commitment on both sides may be enormous. Sometimes neither side is satisfied with the result. Relationships that may have existed between the parties are likely to have been severely strained. On the other hand, ADR may help:
- Settle all or part of the dispute much sooner than a trial
- Reach a mutually acceptable solution that a court would not have the power to order
- Save time and money
- Preserve ongoing business and/or personal relationships
- Increase satisfaction and thus result in a greater likelihood of a lasting resolution
In formal litigation, the court is limited in the procedures it must follow and the solutions it might reach, and there are risks to submitting a case to a judge or jury. ADR processes are more flexible and permit parties to participate more fully and in a wider range of ways. They give parties more control by providing opportunities to:
- Customize the resolution process
- Expand the range of views and interests considered
- Reach a business-oriented or other creative solution that may not be available from the court
- Protect confidentiality
- Eliminate the risks of litigation
Early in a lawsuit, attorneys sometimes find it difficult to devise a cost-effective case management plan and/or ways to limit the dispute. An ADR neutral (an impartial person) may help:
- Streamline exchange of information and other pre-trial processes
- Narrow disputed issues by identifying areas of agreement
- Reach agreements that limit the factual and legal issues, thereby reducing court time.
In traditional litigation, the parties may stop communicating directly. Often it is only after a significant amount of time and expense that the parties come to understand how their dispute can be presented in the legal system.
ADR can speed up the parties' access to information and help them obtain an earlier and better understanding of the legal aspects of their case. It may:
- Provide an opportunity for parties to communicate their views directly and informally
- Assist parties to identify and focus on the core issues
- Help parties understand relevant laws and evidence
- Help parties understand the strengths and weaknesses of their cases
- Encourage parties to exchange key information directly
Due to its adversarial nature, litigation can increase the level of tension, and often hostility, between parties. These escalated barriers to communication hamper chances for settlement. In contrast, an ADR neutral may:
- Improve the quality and tone of communication between lawyers and parties
- Decrease hostility between clients and between lawyers
- Reduce the risk that parties will give up on settlement efforts
Generally speaking, mediation offers parties more settlement options and enables them to develop more creative outcomes. Mediation can also set the stage for future communication and cooperation between the parties, which is especially important when relationships and children are involved.
Mediation often lowers the intensity level of the conflict, enabling the parties to vent in a safe environment. It gives parties the power to reach their own decisions versus having outcomes determined by others, such as a judge.
Mediation recognizes that both parties needs are important, and mediation offers privacy.