Comparison of Mediation and Litigation as Approaches to Dispute Resolution Sample Clauses

Comparison of Mediation and Litigation as Approaches to Dispute Resolution. Mediation, as defined above, is thus a process in which disputing parties negotiate with the assistance of a third party mediator in an attempt to resolve their differences and create a mutually acceptable settlement. In most cases, the objective of mediation is the resolution of the dispute, signified by both parties subjectively accepting the dispute has ended.88 From our discussion above, it is evident that litigation and mediation approach the task of dispute resolution in quite a distinct manner. As we have seen, dispute resolution is achieved in litigation through a court’s authoritative determination of the rights, remedies and relationship of disputing parties, by reference to legal norms. In mediation, however, resolution is a consensual process of facilitated negotiation, which is based on the interests of the disputing parties, rather than legal or societal norms. In litigation, decision making control is held by a third party authority, some parties may be coerced by law to participate and the parties exercise little control over the outcome. By contrast, mediation is a voluntary and consensual dispute resolution process, over which the parties have much greater control.89 Furthermore, the adversarial character of litigation usually necessitates an outcome of a binary nature, that is a party will either win or lose. In contrast, mediation endeavours to accommodate and reconcile the interests of both parties, thus obtaining (in theory at least) a “win-win” outcome.90 There is extensive references in the literature on mediation and ADR to the purported advantages of those approaches to dispute resolution when compared to “traditional” or court- based dispute resolution through litigation. Whilst we will not undertake an exhaustive review of this debate, we will at least review the main criticisms of litigation as a process of dispute resolution and the advantages, which mediation supposedly offers as an “alternative”. The main faults of litigation as detailed by its critics include91: • The high cost of legal representation 88 Xxxxx and Xxxxxxxx, Adr Principles and Practice, p130. 89 For a more detailed discussion of the differences between mediation and litigation see Xxxxxx, Mediation: Principles, Process, Practice, p74-76. 90 Ibid., p87. 91 This summary is based on the discussion in Xxxxxx Xxxxx and Xxxxxxxxx X Xxxxxxx, Dispute Resolution in Australia (Xxxxxxxxxxxx, 1992), p30-58.; • The frequently protracted nature of litigation, which is oft...
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