Originally from:

AAA Handbook on Mediation - Third Edition

HOW TO ACHIEVE THE BEST RESULTS IN MEDIATION

Karin S. Hobbs

I. Introduction
Lawyers are there to solve problems. Traditionally, lawyers have filed lawsuits as the expected mode of dispute resolution. However, lawyers and clients have learned that litigation often escalates emotions, increases costs, confuses the dispute, and delays resolution of the problem. Further, litigation almost always results in a win for one side and a loss for the other. Mediation, in comparison, is less expensive, significantly faster, and provides a solution that both sides agree upon. As a result, mediation has become an increasingly attractive method of resolving disputes.
Because the judicial process and the mediation process are vastly different methods of dispute resolution, mediation preparation differs dramatically from that of litigation. The judicial system is premised on the theory that if both sides present evidence to a neutral judge or jury, the truth will surface, and the fact-finder will resolve the dispute fairly. In mediation, however, it is the parties who identify the issues, their interests, and their needs to determine whether—considering all the risks— they can resolve the dispute fairly. The parties are the decision-makers and are empowered to make decisions in the context of mediation. In litigation, however, the parties are asking attorneys to speak for them and for a neutral to decide the case. Judge-imposed solutions are often viewed as unfair, unjust, or legally flawed and often lead to appeals and a continuation of the dispute. Mediated settlement agreements, on the other hand, are final, and the dispute is over.