Pros and cons of mediation vs. litigation

Key Takeaways:

• Mediation is a dispute resolution process that’s an alternative to litigation. In mediation, a neutral third party helps the parties in a dispute have a conversation and possibly come to agreement on how to resolve some or all of their issues.
• Litigation is a formal court process to end a dispute. The parties present evidence and their arguments to a judge or jury, and the judge or jury makes a decision on how to resolve the dispute.
• Mediation is often less expensive and more flexible than litigation because many mediators don’t have to follow strict procedural or evidentiary rules.
• While litigation might be more rigid and expensive, litigation rules may better protect your rights and help ensure you receive an enforceable remedy.
• Parties considering mediation may want to consider how well they can cooperate with each other because resolving a dispute through mediation requires voluntary agreement from all parties.

When a serious conflict pops up, the parties in the fight might want a referee to help them resolve the issue. For some, this means hiring a neutral mediator who helps the parties discuss their disagreements and reach a consensus that satisfies them both. For others, this means litigating the matter in court, where each side presents its case and a judge makes the final decision. 

Choosing between mediation vs. litigation is a personal decision. Depending on the unique circumstances of your case, each process offers distinct advantages and disadvantages. Overall, mediation might be less contentious and less costly than litigation, but the results of litigation may be more final and certain.

Knowing the pros and cons of each dispute resolution method is essential to making an informed decision about how to end a conflict. This article discusses mediation and litigation in detail to help you better understand each and which may be better for your situation.

What is mediation?

Mediation is an alternative dispute resolution process that involves a neutral third party (a mediator) who helps facilitate discussions between parties in conflict. It’s voluntary in many situations and may be a stop on the way to litigation (a trial in court) if the parties can’t agree. In a successful mediation, the mediator helps the parties reach a mutually acceptable agreement to end their dispute.

Unlike litigation, mediation is collaborative rather than adversarial, and it’s typically confidential. In multiple states, this means that neither the mediator nor the parties can disclose anything they discuss during their mediation conferences. However, the final agreement the parties enter into after mediation might not be confidential. 

Also, the mediator doesn’t force the parties to fix their conflict in a particular way (or at all). Instead, the mediator guides both parties to effectively communicate with each other and work toward a resolution. The mediator might guide the conversation by doing the following:

• Asking each side questions about how they view the conflict
• Rephrasing each party’s position to help the other party understand
• Suggesting solutions to the parties that might benefit them both

Mediation typically doesn’t have the rigid timelines of litigation (more on that below), so the process might move quicker than a trial. And mediation may be more flexible since the parties aren’t bound by rules that might prevent them from considering certain evidence like hearsay or prior bad acts committed by either party. Parties who participate in mediation tend to have more control than parties in litigation, because the final resolution is up to them rather than a judge or jury.

What is litigation?

Litigation is a formal process of resolving disputes through the court system. A fight in court often involves presenting the case before a judge (and possibly a jury), who makes final decisions based on the law and the evidence and arguments before them. Unlike a mediator, a judge in litigation can force a resolution on you.

Litigation is inherently adversarial, and the outcomes determined by the court typically favor one party over the other. There may be more clear winners and losers in litigation than in mediation. 

The litigation process follows strict procedural and evidence rules and may become a drawn-out and costly experience. While the mediation process doesn’t guarantee a resolution at the end, a completed court trial involves an order for at least one party to take action to end the dispute. A few examples of resolutions from a trial could include:

• An order for one party to pay the other
• An order for one party to provide the other with a service
• An order for one party to stop engaging in certain behavior 

Main pros and cons of mediation

The pros and cons of any dispute resolution method depend on your specific needs and circumstances. However, the following overview of mediation pros and cons might provide a starting point.

Less expensive than litigation

One of the biggest advantages of mediation is its cost-effectiveness. Yes, mediation might cost several hundred dollars per hour, depending on where you are and the mediator you use. For instance, a mediator in a federal court case in New York might cost you $600 for up to four hours, while a mediator through Colorado’s Office of Dispute Resolution for a county court civil case might cost you $50 per hour. 

But you may be able to avoid some additional fees that are common with litigation, such as:

• Filing fees
• Service fees
• Expert witness fees

Also, some courts offer mediation services free of charge or at lower rates, especially if the dispute is a family dispute and the parties have limited income.

Parties in mediation and litigation may hire attorneys, who may also cost hundreds of dollars per hour. However, parties in mediation might have lower attorney fees because the process may move much quicker than a trial and involve less legal work, particularly work regarding trial procedures and evidentiary rules. 

Maintains confidentiality and privacy

Litigation usually takes place in a public courtroom, and many court filings are open to the masses. Depending on who you are, having a fight in public might be unnerving or embarrassing. 

Mediation is generally a private process in many states. Discussions, negotiations and some outcomes remain confidential. This confidentiality may be especially important in matters where sensitive information is involved, including information about:

• Personal finances
• Physical, mental or emotional struggles
• Internal business issues
• Family matters involving young children or romantic partners

Limited legal enforcement power

While agreements reached in mediation may be formalized into legal, enforceable contracts, mediators themselves don’t have the power to enforce decisions or force outcomes like a judge can. If one party fails to honor the agreement, the other party may need to go to court to seek enforcement. 

In some cases, such as divorce cases or cases where the parties engage in mediation in the middle of litigation, the parties might be obligated to file their settlement agreement with the court to make it legally binding.

No guaranteed final resolution

Mediation relies heavily on all parties’ willingness to cooperate and compromise. As mentioned above, if the parties don’t want to agree, a mediator can’t force them. And if either party is unwilling to negotiate in good faith or reach an agreement, mediation may fail. In such cases, the dispute may ultimately end up in litigation, which may result in additional time and expense. 

If you’re looking for a final resolution without logging time in court, arbitration could be another answer for solving your dispute. Your state’s law may allow an arbitrator to make a final and binding award in your case after conducting private proceedings. When it comes to arbitration vs. mediation vs. litigation, you may have more privacy with arbitration and mediation but less control with litigation and arbitration.

Main pros and cons of litigation

For many, litigation is an ugly word because fights in court may be bitter, lengthy, expensive and open for everyone to see. But not all litigation is brutal, and the process may come with many advantages.

Legally binding court decision

A significant advantage of litigation is that court decisions are legally binding and enforceable from the start. Once a judge issues an order, both parties must comply with its terms or face legal consequences such as fines, asset garnishment or jail time.

Fully protects legal rights

In litigation, each party has several rights that the law protects and the court upholds. These include the right to:

• Receive proper notice of the proceedings and the evidence against you
• Respond to the other party’s claims against you
• Have reliable evidence presented in a fair manner
• Receive financial damages or court orders to resolve a dispute according to the law
• Appeal a decision with which you disagree

As discussed above, mediation isn’t necessarily subject to federal or state evidentiary rules or procedural timelines. And the mediator can’t force the other party to pay you or change their behavior. But a court can force a defendant to give you relief, and you may assert your rights to procedural and evidentiary protections during a trial.

Takes a long time

Litigation is often a lengthy process, and not everyone has the time or resources to be in court for long. The length of the litigation process starts with the amount of response time and notice a petitioner may have to give to the defendant. 

In many states, petitioners must serve defendants with their complaint and a summons. Service might involve a sheriff or other authorized individual personally delivering the court paperwork to the defendant. This may take multiple tries to complete, which could add up to several days.

Once the defendant receives notice about the lawsuit, they could have between three weeks and three months to respond. The exact time depends on the laws in your state or whether your case is in federal court. 

After the defendant responds to a complaint, each party engages in discovery, which is a process for collecting evidence, such as:

• Witnesses
• Medical records
• Financial records
• Recordings
• Photographs

To gather this type of evidence, you might have to ask the defendant questions (called interrogatories) that require them to give sworn answers. In many states, defendants have at least two weeks or more to respond to interrogatories. You might also have to give witnesses at least 20 days’ notice to testify. These notice requirements may pile up fast and increase your total trial time from a few months to more than a year.

After compiling your evidence, it might be time for trial, which may take several days or longer to complete. And when the trial is complete, a judge or jury might take time to make a decision.

Extremely expensive legal process

Litigation may be prohibitively expensive. Just initiating a case may cost around $100 or more in court filing fees. And you may have to pay additional fees to have the defendant served, file additional motions and pay witnesses for each day of testimony. These expenses could cost you hundreds. And then of course there’s attorney fees, which can be several hundred dollars per hour. 

Although you might also have to pay these costs in a mediation or arbitration case, the adversarial nature of litigation often prolongs disputes, resulting in higher costs. For parties with limited financial resources, the expense of litigation may be a major drawback.

Mediation vs. litigation: Key differences to consider

There’s a lot to weigh when trying to decide between mediation and litigation. The main differences are discussed below.

Mediator facilitates, judge decides

The role of the mediator is collaborative, while the judge’s role is authoritative. In mediation, the mediator acts as a neutral facilitator who helps the parties reach an agreement that may benefit them both. In litigation, a judge makes binding decisions based on legal principles and evidence. Also, when it comes to mediation vs. arbitration vs. litigation, arbitrators and judges can make final decisions that mediators typically can’t.

Private process versus public

Mediation typically takes place in a private setting, preserving confidentiality for both parties. In contrast, litigation typically occurs in a public courtroom, and case details may become part of the public record. If you take a case to trial, the public might learn details about your family life, your business dealings or your financial condition. 

Still, although mediation may help you avoid this exposure, the public may learn the subject of an issue you mediate if you need the court to enforce a mediation agreement.

Less expensive than courts

Mediation may be much less expensive than litigation due to its streamlined nature. Litigation, on the other hand, may involve higher attorney fees and other expenses because of extended timelines and court costs.

Faster resolution than litigation

Mediation often leads to quicker resolutions since parties may schedule sessions at their convenience, versus being at the mercy of the court’s schedule. Those who use meditation may also avoid delays caused by procedural rules for trials.

Informal vs. formal process

Mediation is informal and flexible, allowing parties to discuss issues openly and craft creative solutions on their own timeline. Litigation follows many legal procedures and rules of evidence that may make the process feel rigid and adversarial.

Flexible solutions vs. strict

Mediation encourages flexible and customized solutions that reflect the specific needs of both parties. Parties can agree to things that judges cannot order in the absence of an agreement. In litigation, judges are bound by legal precedents and statutes, leading to more rigid outcomes that may not fully address the parties’ concerns.

How to choose between mediation and litigation

There is a long list of reasons why you might choose mediation over litigation or vice versa. Here are some suggestions that may help you make your decision.

Consider your financial resources

If financial constraints are a concern, mediation is typically a more affordable option. Litigation often involves substantial legal fees and ongoing costs that may strain resources.

Evaluate whether the relationship is worth preserving

Mediation may be ideal for parties who want to preserve relationships, such as co-parents or business partners. The collaborative nature of mediation may help maintain amicable communication, while litigation may deepen animosity.

Assess time sensitivity needs

If a quick resolution is necessary, mediation is often a better choice. Litigation can be a prolonged process, which may not be practical in time-sensitive situations.

Determine the legal protection required

In cases involving significant assets, custody disputes or uncooperative parties, litigation may be necessary to ensure your legal rights are fully protected and the outcomes are enforceable.

Check the possible cooperation level

Mediation requires a willingness to cooperate and compromise. If one party refuses to engage in good faith, litigation or arbitration may be your only viable option.

Timelines for mediation vs. litigation: What to expect

Mediation timelines are generally much shorter than litigation timelines. Because you may be able to set your own schedule, mediation might be completed within a few weeks to a few months. In contrast, litigation may take several months to years due to the discovery processes and trial preparation rules outlined above.

Bottom line

Both mediation and litigation offer unique benefits and drawbacks when it comes to resolving conflicts. 

Mediation may provide a less contentious and more private environment and give you more control over the outcome. But it may not result in a final decision, and you may still need to seek help from a court to enforce a settlement agreement from mediation. 

Awards from litigation may be easier to enforce, and you are more likely to receive a final decision from a court that can enforce the order. The court can also force either party in litigation to take actions, such as producing evidence, refraining from hurtful acts or paying the other party compensation. However, litigation can be bitter and stressful, and some court cases and filings are open to the public.

An attorney may be beneficial in helping you determine which resolution fits your needs. They can also guide you through the proceedings, review agreements for potential pitfalls and timely file documents for any litigation you choose.

Sources

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