An Alternative to Costly Court Systems


An Alternative to Costly Court Systems

Discussions around access to justice are generally focused on the court system and how to make it easier and more affordable for the public to access the courts. This is massively important, but the courtroom is not the only way to access justice. Mediation is an excellent alternative option that provides an efficient and cost-effective means to resolution. Through my practice as a mediator, I have seen many advantages to resolving matters outside the courtroom.

Informal Setting

A mediation allows the parties to meaningfully discuss their dispute in front of a neutral party in a setting that is far less structured and intimidating than a courtroom. I conduct many mediations by Zoom with parties participating from their lawyer’s office or their living room. Even when mediations are conducted in person in a boardroom, it is far more comfortable to be eating chocolate almonds and catered lunch at a host office than entering a courtroom with a sheriff, lawyers and judges in robes.

In a mediation setting, the parties can explain their positions and their feelings in plain language without worrying about opposing counsel or a judge seizing on a stray word to their detriment. If there is something they do not want to discuss, they do not have to. The simple opportunity to speak their truth to the mediator is of tremendous value to many parties. I have seen parties be willing to make massive concessions after doing nothing more than explaining their point of view because they feel heard.

Resolution Driven by the Parties

While a mediator is not a judge and will not be able to decide the dispute, in many ways a resolution reached through a mediation can be more satisfying than a court decision.

There is significant advantage to a resolution that the parties have crafted themselves, rather than the risk and uncertainty of a decision imposed upon the parties by the court. At a mediation, the parties are in charge. As the mediator, I tell each party that I cannot make any of them do anything. I suggest, encourage, cajole, and occasionally am reduced to begging, but fundamentally the parties have the power to reach a resolution that satisfies their objectives and meets their willingness to compromise. This dynamic empowers the parties to take control of their dispute and increases the chance they are satisfied with the outcome.

Costs and Timing

Mediation is massively more cost-effective and timely than court. I book many mediations within weeks of an initial inquiry as to availability. This is obviously preferable to trying to book a trial date eighteen months out through a phone lottery system. Similarly, the costs of a one-day mediation shared between the parties is magnitudes less than the costs of proceeding with trial.

Alleviating Pressure on the Court System

An indirect benefit of mediation is that it can also improve access to justice by alleviating pressure on the court system. Every dispute that is resolved through mediation is one less dispute that will require court time and resources. Many disputes simply cannot justify the amount of time they would take if they were to be heard by a judge. Mediation is exceptionally effective at removing those disputes from the court system.

Of course, mediation is not a panacea. A properly functioning justice system must allow litigants who seek their day in court to have it. While I firmly believe that an overwhelming percentage of cases should resolve in mediation, I still spend time at almost every mediation reminding parties that they do not have to settle. Mediation cannot replace the courtroom in every situation, but it is a great choice — and the right choice — in the majority of cases.

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