Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may remind you that suing your neighbor when they won’t replace the fence that Fido knocked down last week may not be the best option. This week’s word is the latter.

Written by: Lauren E. Trent

Most people imagine a dramatic courtroom battle when they think of resolving legal issues.  What they may not realize is that court isn’t always the best place to settle a dispute between private parties. Maybe there is more than money at stake, or perhaps the cost of litigation is too high when compared with the amount of money at issue. Sometimes there may not even be a clear legal remedy for the problem. In all of these cases, parties might turn to a mediator to help them resolve the dispute, instead of going to court.*

A mediator does not act as a judge, an arbitrator, or any other type of decision-maker. Rather, a mediator is a neutral third party that helps people to resolve an issue themselves. With the help of a mediator, you and your neighbor might sign an agreement to split the cost of the fence that their dog knocked down-after all, recall that your kids were using it as a jungle gym everyday last summer.  

Mediation presents the most distinct advantages over litigation when the parties have a relationship that will continue after the current issue resolves, or there is a need for creativity when fashioning a solution. There is just something about being served and going to court that makes people surly, and not likely to offer to get your mail the next time you go out of town. Mediation helps preserve relationships by avoiding the embarrassment of being hauled into court, and by giving people the opportunity to air concerns that a court would rightly ignore when evaluating a legal claim. The process also allows people the freedom to solve their problems in a way that best fits their situation, increasing the likelihood that they will abide by their agreements and feel good about the resolution. The key here is flexibility. 

In some areas of the law, mediation is a required first step rather than a pure substitute to litigation. In many counties, for example, parties to a small claims court action must attempt to resolve the issue in mediation prior to going before the judge. If the parties reach an agreement, nothing further happens with the court (unless one party fails to hold up their end of the deal). The defendant avoids a judgment on their record, and may be able to convince the plaintiff to accept a payment plan. Meanwhile, the plaintiff can avoid the time and risks involved in going forward with trial, and increase the likelihood that they will collect money from an insolvent defendant by entering into that payment plan. 

Mediation is rapidly gaining popularity, and many larger cities and counties now offer free or low-cost community mediation services. Even if parties must pay for a mediator out of pocket, in many cases it will remain  cheaper than litigation. So the next time you find yourself at war with a neighbor, landlord, or ex-partner, consider calling a local mediation service before filing those papers. 

*While mediation occurs in a variety of contexts, including labor disputes, disputes between organizations, or even states, this explanation focuses on the kind of mediation that most of us might encounter in our daily lives.