Is mediation a preferable route to dispute resolution?

• Position: Point Counterpoint

Yes

William Downes

Director, Utah Dispute Resolution

CONFLICT IS ALWAYS UNWELCOME. When it is at our doorstep, we have to decide whether to ignore it or to address it. Should we choose to address the conflict, we must decide how to begin. Should we speak to the person? Should we write a letter? Should we sue?

Often we begin by attempting to negotiate. Should we fail in our attempts to negotiate, we have a dilemma. Do we spend the money to hire a professional to assist us in resolving the conflict, and what conflict resolution process do we use?

The two conflict resolution processes available to us are mediation and litigation. In mediation, a neutral third party meets with the parties to the conflict and explores the conflict from its many perspectives. Parties are encouraged to ask questions and exchange relevant information so that all parties are fully informed prior to seeking a mutually acceptable resolution to the conflict. The mediator's role is to explore options with the parties and facilitate a dialogue as to what option might be acceptable to all parties to the conflict. A mediator with expertise in the subject matter of the conflict may also serve as a neutral evaluator and express an opinion as to how a judge or jury might decide the conflict.

The advantages of mediation are that it allows for conflicts to be resolved quickly and inexpensively. The disadvantage of mediation is that it does not ensure that the conflict will be resolved. Parties to the conflict are free to accept or reject any resolution proposed by a party or the mediator. Parties to the conflict are not legally bound by mediation.

Litigation, on the other hand, is a legally binding, rights-based conflict-resolution process. The parties to the conflict employ lawyers to discover the relevant information, present this information to a finder of fact, and argue for a particular result in light of established legal principles. The advantage of litigation is that the finder of fact will endeavor to render a verdict consistent with laws established by legislatures and judges. The disadvantages of litigation are that it is expensive and time-consuming. With rights of appeal, litigated conflicts may take years to resolve.

Is mediation a preferable process to resolve conflict? It is if you are willing to participate meaningfully in a facilitated negotiation to resolve the differences that exist.

No

John P. Harrington

Shareholder, Ray, Quinney & Nebeker

ANY ARGUMENT...