Why Mediation Resolves Conflicts Better Than Litigation
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Litigation is like war. Just as warfare is expensive and dependent on unpredictable factors like weather and human behavior, lawsuits often burn fortunes with unreliable outcomes. In most war and litigation, each side is partly right and partly wrong, depending on someone’s perspective. More lawsuits end with “winners” and “losers” than wars, but both conflict types exhaust precious emotional energy, time, and financial expense before opponents enter the courtroom or battlefield. Victors often feel like losers because high conflict expenses devour the benefits of their victories.
Negotiated dispute resolution allows adversaries to share control of their disagreements instead of relying on other people or external factors. Each side usually understands the dispute details and has a strong interest in getting a good result. Unfortunately, direct negotiation often fails because distrust and competition to win keeps parties from understanding each other well enough to negotiate effectively.
A mediator helps opponents understand each other better so that they can make better decisions about agreement opportunities. Mediation rules allow a mediator to speak with each group privately and keep the private conversations confidential. If a mediator discovers fundamentally divisive misunderstandings, the mediator can help correct the parties’ understandings and eliminate division. When both parties want the same thing, but they do not trust each other enough to say so, they can confide in the mediator safely and the mediator can reveal mutually satisfactory agreement opportunities.
Progressive mediators often insist on having direct conversations with each party several weeks before a mediation conference to learn each party’s perspective. That early discussion helps the mediator determine each party’s mediation readiness. If the mediator thinks the parties are not ready to mediate, the mediator can help them prepare for a more effective mediation process instead of wasting time in premature mediation.
Mediation depends on each party’s willingness to hear the other side of the argument and consider their own litigation prospects realistically. People sometimes resist spending time and money on mediation because they may think mediation cannot solve their disputes. However, well prepared mediation participants usually learn critical things very efficiently in mediation that would require great time and expense to discover through litigation formalities. Therefore, even if mediation does not produce a negotiated settlement, it often streamlines litigation by eliminating wasteful distractions and misunderstandings.
Wise lawyers and clients prefer pre-lawsuit mediation. They prepare carefully for mediation because they know that they can recycle mediation preparation in litigation if mediation fails. Successful early mediation saves fortunes in litigation expenses and sometimes reconciles family and business relationships that would permanently disintegrate in litigation.
Group decision facilitation is a sophisticated mediation variation that builds bridges within private and government organizations in many productive ways. Leaders of churches, civic organizations, and government bodies often face crossroad decisions involving multiple stakeholder perspectives that complicate and disrupt the information-gathering and decision-making process. A mediator with public policy facilitation training uses mediation principles to help stakeholders and decision-makers build a complete picture of a problem that they can then work together to solve in facilitated meetings.
Some people lack the ability to think rationally enough about problems to collaborate effectively, but conflict burns everyone’s resources. The old maxim, “two heads are better than one,” proves itself in collaborative problem-solving because bridges and peace offerings are more productive investments for everyone than fortresses and artillery.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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