Mediation: the art of crossing two bridges at the same time

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Mediation is seen as an alternative to litigation, which may take years and prove costly and time consuming whereas mediation can be finalised within a matter of hours.

Advantages of mediation

There are many advantages to mediation when compared to litigation. One of the key advantages of mediation is that the negotiations take place on neutral soil, and the parties to the negotiation can design and have some control of the possible outcomes of the mediation. The court system, on the other hand, is unpredictable and the outcome is out of the hands of the parties concerned.

Mediation also allows bridging opportunities between the two parties concerned as it separates the person (and therefore the emotion) from the problem. This enables the parties to maintain composure and avoid flaring tensions, which can impede resolution. Mediation works to restore the relationships of the parties concerned. It offers a wider range of solutions and allows time for apologies and explanations. This bodes well for the continuation of existing professional relationships, even if this relationship is established on new terms or after a new agreement.

Another advantage of mediation is that it can offer outcomes of mutual gain. Options can be generated that are aligned towards meeting all of the parties’ interests. In this regard, concessions and compromise can be used to resolve the dispute in a way that pleases everyone. Mediation also allows for creativity in addressing the interests of the parties concerned. This could be done by focusing on a desired outcome and by negotiating on interests and not positions. In this way, disputes are resolved based on the dynamics of personal relations and not points of law. Thus, finding common ground is essential in the resolution process.

Feasibility

Mediation is not always feasible, especially when an urgent injunctive relief is sought or if the nature of the dispute does not lend itself to mediation. For example, if one party is owed money and the other party is simply trying to avoid payment without any real justification, mediation would not be suitable.

Mediation used as a delay tactic in a legal battle will always prevent a successful outcome. Mediation would also not be suitable if the dispute involves allegations of fraud and dishonesty, as a continued relationship would be unrealistic. Litigation would also be a better option if the dispute is a matter of principle or if one party wants to set a precedent.