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  • Writer's pictureIngrid Scholze

Mediation > Litigation

Litigation is inadequate to solve the problems businesses face in the twenty-first century. It robs litigants of control, imposes excessive costs in both time and money, and provides unpredictable results.

In court, a litigant has limited control over what remedies a judge might design. Judges often don’t have the tools to fix business problems beyond moving money around. Real business solutions require agreement among the parties–to undertake a project in a new way or to evolve into a new line of business. A judge also might totally misunderstand a litigant’s business or the substance of the dispute–this happens! In failing to understand the problem, the judge is left unable to design a meaningful solution, even if they had the tools to do so.

A litigant could easily find themselves on the other side of a multi-year litigation that has cost hundreds of thousands of dollars in discovery and legal fees with an adverse outcome, or even a favorable outcome but with a remedy that doesn’t fit the problem.

After almost a decade in litigation, I know there is a better way: Mediation.

In mediation, you can be creative. You can think outside the box and create a solution that would not be available to you in a court proceeding. You can obtain a durable and final result quickly, cheaply, and with maximum input and complete veto power. Mediation can also be an important mechanism for information gathering–both about the facts and substance of the dispute, and also about the motivations and pressure points of the other party. Every legal client should demand mediation, and every lawyer should recommend it.

Even if a mediation isn’t successful in completely resolving a dispute, you still leave the mediation with all of your rights intact and and more information than you went in with–potentially bringing a resolution closer to fruition, which can save time, money, resources, and frustration.

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