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When Mediation Can Help by Peter Lovenheim
Nolo Press

This article originally appeared in the Nolo News.

Mediation is useful in a very broad range of circumstances; it can help resolve almost any civil (non-criminal) dispute that would otherwise go to court or arbitration. Here are some factors that should trigger thoughts of mediation instead of a lawsuit:

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The Law Can't Help

Although there are hundreds of thousands of laws on the books, many types of common disputes simply do not raise a legal claim that you can take to court. Disputes between family members, employees or neighbors are sometimes of this type. Fortunately, mediation is available even when courts are not.

For example, suppose a suburban homeowner finds that he has no legal recourse regarding lights around a neighbor's driveway that shine in his bedroom window. Mediation--which might bring to the surface other smoldering problems between the neighbors--would be a good way to tackle the dispute.

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You Want to End a Problem, Not a Relationship

Does your dispute involve another person with whom--either by choice or circumstance--you need to remain on good terms? This may include family members, co-workers or business partners, your landlord, neighbors or others with whom you have a continuing personal or business relationship. Lawsuits polarize and ultimately ruin relationships. A huge advantage of mediation is its ability to get a dispute resolved without destroying a relationship.

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Your Dispute Is No One Else's Business --and You Want to Keep It That Way

One of the drawbacks to going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes available to the public. Only by a special order of a judge can information be "sealed" from public exposure. So whether your desire is to protect trade secrets or just to avoid washing your dirty laundry in public, your privacy will be substantially greater with mediation rather than litigation.

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Sidebar--Good Candidates For Mediation

  • A married or unmarried couple who are separating and need to divide valuable household items.
  • Two small businesses squibbling over customer lists.
  • Divorced parents trying to agree on child custody and visitation.
  • A consumer with a complaint against a merchant.
  • A landlord and tenant arguing over a security deposit.
  • Co-workers who can't seem to get along.
  • A homeowner who is unsatisfied with a contractor's work.
  • Business partners who can't agree on how to run, or dissolve, the business.

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You Want to Minimize Costs

Mediation is almost always far cheaper than litigation. A dispute that may take $20,000 per party to resolve in court typically costs less than $2,000 per party to mediate.

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You're in a Hurry

Lawsuits are incredibly time-consuming; it's not at all uncommon for them to drag on for years. Mediation, on the other hand, can be begun at almost anytime, and it may take only a few hours. Even small consumer disputes that might take three months or so to resolve in small claims court can be disposed of far more quickly in mediation.

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You're Having Difficulty With Negotiation

Sometimes you may hope to negotiate a fair settlement to a dispute, but are just not able to get the attention of the other side to start the process. For example, maybe the other party is a large company or government agency that refuses to negotiate with individuals. Or maybe you fear you have poor negotiating skills or are a little intimidated by the other party.

Mediation may help in these kinds of situations. The mediator's presence can help provide a more comfortable environment for negotiations, and the mediator can help you get your points across clearly to the other side. On the other hand, if there is a serious imbalance in power between you and the other side, mediation may not be an appropriate way to resolve your dispute.


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