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Mediation in civil litigation is designed to solve problems and assist the parties in reaching a resolution of their legal dispute.  Mediation is often invoked to resolve the parties’ disputes outside of traditional court processes.  Unlike litigation, where abundant statute and case law provide process structure and guidance, mediations, often characterizes as a pause on the acrimonious practice normalized in litigation, are largely left up to the participants.[1]  There are several advantages to engaging in mediation.

Mediation’s advantages include but are not limited to the following goals:

Conversely, at trial the parties have one goal and one goal only: winning by any lawful means necessary & at any cost (both emotional and financial).

It is important to note that private ADR, and private mediation, are largely recognized as separate from the Court.  That is because mediation is not viewed by all as the practice of law.  In fact, the American Bar Association has passed a resolution that unequivocally holds that mediation is not the practice of law.  If you litigate your case you will most likely, but not always, mediate with a private mediator who is affiliated with a private mediation company who has no formal or business relationship with the trial court handling your case.  Many individuals work as mediators on a full-time basis.  Therefore, mediation is widely viewed as its own independent profession, and not part of or corollary to the practice of law or the court system.  That is to say, when you mediate privately, you enter another world distinct from the trial court and your legal case.

[1] To accomplish the objective of a mediated resolution, counsel may need to temporarily set aside the limited role of advocate in favor of a more holistic approach that encompasses the client’s underlying needs as well as their rights and remedies.