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Boston Worcester Springfield Cape Cod York, ME Boston |
The judicial litigation process is focused 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. It narrowly considers and sifts and evaluates only those facts that are necessary for the analysis and application of the relevant law. The focus on the facts of what happened and whether they were legally compliant or not makes litigation inherently about the past. Mediation, however, frees the parties from the unchangeable past as its work is focused on the present and immediate future. The facts discussed do account for each party’s perspective of what happened. Significant emphasis, though, is placed on what is factually relevant now as the parties identify the issues to be resolved in mediation. There is no legal sifting and evaluating of what happened, no application of law and no determination of liability. In court, the judge and sometimes a jury determine liability, or lack of it. In mediation, the mediator, a neutral, makes no such determination. The parties, themselves, are the decision-makers. In court, a legal determination is made and where action is found wrongful, a standardized remedy is applied. In reaching a mediated agreement, the parties are able to creatively discuss a variety of alternatives for resolution. The outcome of mediation is intended to bring closure to the parties on terms meaningful to them. A court’s decision is enforceable. An agreement reached in mediation is also enforceable. Compliance with the self-determined agreement, however, is dependably high. |
