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Is mediation good and litigation bad?

“I’m getting bored of people telling me that mediation is good and litigation is bad. Surely there is more to it than that?”

Yes, there is. It is not this simple, and it is naïve and misleading to say otherwise. Mediation is a finessed form of negotiation, and no one negotiates unless they are ready to make concessions to the other side (i.e. offers to give away value or to receive less of it). If your legal advisers tell you that you have a legal entitlement to claim and recover all of the losses another person has caused to you, there is usually no logic to you making concessions. A demand followed by a legal claim will be justified and, if you can prove that claim, you should obtain early judgment from a court (this is the value of litigating to enforce your rights).

However, one of the advantages of mediation is that it may provide outcomes that suit you better than a court’s money judgment. The range of outcomes available through mediation settlement agreements depends largely on imagination. You can set up the process very fast within a week, choose your own venue, or conduct the whole process online. You have some choice in that process and using it will be cheaper than litigating. You will be able to side-step the barriers of litigation privilege by obtaining direct answers from the other side via the mediator.

Nothing you say to the mediator will be repeated to the other side without your permission. And, as far as the law allows, nothing written or said will be repeated in a courtroom or the rest of the outside world. Rather than an imposed outcome, you will have the opportunity to agree what it will be. For some people this is a better option.

Therefore you are correct to mistrust simplistic generalisations. It is matter of which resolution process suits you best.

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