It can be difficult for counsel, in the midst of combative litigation, to change gears and dispassionately work for a mutually-beneficial solution. Mediation, on the other hand, provides a neutral setting for the negotiation, with expert help in reducing the level of emotion that most disputes generate. It also provides an opportunity for each party to present their side of the dispute persuasively to the decision-maker on the other side, as well as their counsel. Finally, in the confidential caucuses, parties and counsel become more candid and more reasonable. Mediation also allows all sides to succeed when the eventual agreement emerges without attribution through confidential caucusing, no advocate is put in the position of having to acquiesce to a position proposed by the other side.
All sides can achieve peace with honor.
Many attorneys who have practiced litigation for any length of time have found that litigation is neither the most direct nor efficient process to resolve a dispute. For these cases, mediation is often a better way to obtain the same result. Traditional litigation is expensive and its costs are burdensome to all parties and in all types of cases. With the increasing complexity of discovery and pretrial practices, taking a case on a contingency basis is often prohibitively expensive for an attorney. This situation is no better for defendants whose counsel usually charge by the hour.