• 20Mar

    Mediation is generally a short-term process that, ideally, delivers a prompt resolution. Once parties decide to mediate, the process can accelerate quickly. Though mediators may charge as much – if not more – per hour than attorneys, mediators are often employed for much less time than an attorney is for litigation. 

    As such, mediation is often less expensive than litigation. Attorney’s fees and court costs can sometimes be so high and litigation can take so long that the cost of litigation can even exceed the amount in dispute.

    For these reasons among many others, mediation is a valuable option for parties seeking swift resolution. Nonetheless, the litigation world is rife with various myths and mistruths about what the mediation process entails.

    Here, we walk through a few of the most common myths and promptly debunk them, rehabilitating mediation as a highly valuable tool for dueling parties.

    The Most Common Mediation Myths – and Subsequent Truths

    Myth: Asking for mediation is the sign of a weak case.

    Truth: Mediation has nothing to do with the strength of your case or your likelihood that you will prevail at trial. Rather, mediation is designed to allow the parties to have productive, amicable discussions about resolving their disputes. Whether you choose to present the strengths of your case in mediation is up to you; however, the mediator will facilitate the discussion to make sure it focuses on reaching a solution rather than assigning blame.

    An offer to mediate is a sign that you are eager to find a resolution. Because there is not a winner or loser in mediation, it has the potential to preserve an ongoing relationship that must continue beyond the dispute.

    Myth: Mediation is just for emotional cases like divorce or child support.

    Truth: Although it is commonly associated with highly emotional cases in the family law realm, mediation can be a useful means of resolution in virtually any case. While it may be popular in family law matters, mediation is not uncommon in other areas of law, from landlord/tenant disputes to contracts, employment matters, financial disputes, and other business conflicts. The only true prerequisite is not the type of case, but rather, the parties’ willingness to work together to reach a resolution.

    Myth: Mediation is not an option when either party is opposed to settling.

    Truth: According to the American Arbitration Association, 85% of mediations end in a settlement. While the mediator does not have any legally-binding decision-making authority, as a neutral third party who controls the conversation, the mediator can limit the discussion to productive negotiations conducive to a settlement.

    While a settlement is a great outcome, sometimes mediation serves another purpose. With a mediator to keep the conversation focused and productive, mediation cultivates an environment for parties in dispute to come together rather than dwelling on conflicts. Further, rather than hiding behind attorneys in a legal battle, mediation offers an informal setting for parties to discuss the dispute. Parties can share the impact of the dispute, offer explanations, answer questions, and work together to seek a resolution that will meet both of their needs.

    Even if mediation does not end in a settlement, it still sheds light on the situation and gives each party the information needed to have a better understanding of the circumstances surrounding the dispute.

    Myth: Participating in mediation opens the door to future litigation.

    Truth: This myth is particularly rampant in business disputes. The fear is that settling one dispute will encourage others to claim a dispute in the hopes of also recovering a settlement. However, mediation is less likely to do this than litigation due to its confidential nature.

    Many aspects of the litigation process are public record. However, nearly everything in mediation is confidential. Not only is the fact that mediation is happening private, but negotiations and mediated settlements remain confidential once mediation concludes. With few exceptions, nothing about the mediation process is even admissible in court should the matter proceed to litigation.

    Litigation often involves many outside parties, especially in the discovery process when the search for witnesses and documents ensues. Because mediation is limited to the parties involved in the dispute and does not require the evidentiary support of litigation, mediation is less likely to become public knowledge, thereby minimizing the risk of subsequent third-party lawsuits seeking an easy target.

    Myth: Litigation is a better option than mediation because court decisions are enforceable and mediation agreements are not.

    Truth: It is true that mediation agreements are non-binding. However, mediation often allows parties to come up with a unique solution that might not have been available through court proceedings. Because the parties create the solution, rather than being told what to do by a judge or jury, parties are (ideally!) inclined to follow the mediation agreement because it is to their benefit and is a solution they helped identify.

    Contact Our Experienced North Carolina Mediators

    It is impossible to predict whether a case will settle at mediation. However, an increasingly large number of North Carolina civil cases resolve through mediation. As such, it is critical for plaintiffs to take the mediation process seriously, to prepare adequately, and to work with their attorneys to ensure that they thoroughly understand the issues at stake. Before believing any common myths about the process, speak with an experienced attorney about the potential benefits of taking your case to mediation.

    The attorneys at Strauch Green & Mistretta are dedicated to delivering positive results for our clients. We take pride in offering the very best legal counsel and working with clients to devise the best strategy for their cases. We regularly serve clients across North Carolina and help them resolve their disputes through mediation. If you are on the brink of litigation, call us. We can help you decide which is the best path forward.

    To speak with our mediation coordinator, Cynda Liebers, call (919) 278-7453 or send an email to cliebers@sgandm.com

    This article does not establish an attorney-client relationship and must not be construed as legal advice.