Deciding whether mediation, arbitration, or litigation should be the preferred way to resolve a potential or pending dispute is not as straightforward as many attorneys believe. Pros and cons are associated with use of each of the three major methods of resolving disputes. The key is to select the best dispute resolution option or combination of options following an in-depth discussion with the client.
To Mediate?
Mediation works best when it is voluntary and the participants—both parties and attorneys—are cooperating with each other. The potential for settlement is greatly enhanced when the parties seek to resolve the current dispute with a minimum of acrimony so that they can maintain a long-term business or personal relationship. Parties who will have zero contact following mediation, are not willing to make concessions, or are going through the motions of mediation because it is required are more inclined to reach an impasse. Mediation may be the preferred alternative dispute resolution (ADR) option if parties are seeking a confidential forum; it may also be the only form of ADR that a public entity is legally authorized to use. Rarely will parties agree to voluntarily submit to arbitration after a dispute has arisen, but many times they will agree to mediate to avoid litigation. Mediation can also be used prior to trial to narrow legal issues or resolve discovery disputes.