Mediation is the Opposite of Litigation

If you’re at a point of considering third-party help, you owe it to yourself to know *about* your options.  Litigation is certainly one valid option, but do you understand its implications?  How about in contrast with another option?

Here’s a brief overview that compares litigation with mediation. 

Litigation

— Has a past-tense focus.  on determining the facts underlying a dispute and then applying the law to those facts to determine whether the law has been violated or not.  The focus on the facts of what happened and whether they were legally compliant or not makes litigation inherently about the past.

—- Is narrow.  It sifts through and evaluates only those facts that are necessary for the analysis and application of the relevant law.

— Not self-determining.  A non-party decision-maker determines what is relevant, its significance, and the outcome.

— Remedies are designed for public applicability.  Litigated decisions need to be applicable to a wide range of factual circumstances as decision-makers are not just ruling on facts, but establishing principles, as well.

Mediation

— Has a present-tense focus.  It frees the parties from the unchangeable past as work is about the changeable present and immediate future.

— Is holistic.  The facts discussed are based on each party’s perspective of what happened and what the conflict’s about.

— Is self-determining.  Each party determines relevance in the context of the resolution it seeks, and each party holds the decision-making power to agree or disagree;  choose a particular outcome or not.

— Remedies are customized by the parties, for the parties.

This is a comparison made with broadly painted strokes, of course.  Factors of similarity do exist, such as an outcome’s degree of reliability.

Like a judgment, a mediated agreement constitutes a contract and, so, is enforceable. Compliance with the self-determined agreement, however, is dependably high.

The take-away is, litigation may be a viable option.  It just might not be the only one, or the right one for you.

About Maria Hanna Joseph

Maria Hanna Joseph is Principal of Joseph Mediation. Her 25 years of experience in employment law, include 16+ of work and mediating for the Massachusetts Commission Against Discrimination which through which she has gained valuable insight into the MCAD, its practices and decision making. This, as well as her experience in plaintiff and defense litigation, with private and public sector clients, international and local business concerns, and in issues from harassment and discrimination, to noncompetition agreements, business operation, transgender workplace matters, retaliation and many others, lend her valuable perspective for understanding and mediating an array of legal and personal issues. In terms of volume, Maria has served more than 2,000 cases. Maria's practice has been honed with study of mediation at Harvard Law School's Program of Instruction for Lawyers, negotiation at Harvard Law School's Program on Negotiation, and in the disciplines of Transformative Mediation and Family/Domestic Mediation, which are significant assets in managing the personal nature of employment disputes, and conflict in general. Attorneys and parties know Maria as candid, pragmatic and persevering in her commitment to help them achieve meaningful settlements while keeping sight of their most important interests. The insight and creativity afforded by her experience and training are realized in the resolutions that manifest. These qualities, along with her demeanor and the trust she engenders, have earned Maria a reputation for being able to manage highly tense and fraught situations and individuals, and settle a wide variety of disputes and tough cases.
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