Before litigation, try mediation

Before starting a lawsuit to resolve your next dispute with a customer, supplier, business partner or neighbor, you may want to consider trying to resolve the dispute through mediation. Mediation has huge advantages.

To better understand what mediation is, it is helpful to understand what mediation is not. Mediation is not arbitration or a private trial, both of which involve a neutral picking a winner and a loser. Mediation is a private, collaborative process in which a neutral mediator helps the parties arrive at a voluntary, consensual resolution of the dispute. Parties craft their own resolution with the mediator's assistance. No one can impose a resolution on you. The matter is settled only if both sides agree.

Mediation gets you to a final resolution of your dispute much more quickly than trying to resolve your dispute through the justice system. Even the most complex disputes can often be resolved, with the able assistance of an experienced mediator, in a day or two of focused mediation. There are no appeals in mediation since decisions are reached by agreement. In our court system, routine civil cases almost always take the better part of one year to get to a resolution—and appeals can add another year or two on top of that to get you to a final, nonappealable resolution.

Because mediation gets you to a final result so quickly, the legal fees and expenses of mediation are far less than the legal fees and expenses of full-blown litigation. The parties usually agree to split the fees and costs of the mediator.

Mediation is confidential and private. Information discussed and documents exchanged in mediation cannot be publicly disclosed by the opposing party or the mediator. The mediation process is specifically protected by a mediation privilege under Ohio law. In other words, what happens in mediation stays in mediation. Conversely, trials in our justice system are open to the public, and exhibits used in a trial are available for everyone to see. If there are aspects of your dispute that you would rather not have the public, competitors or neighbors know about, mediation is a smart way to proceed.

Often, litigating a dispute can get in the way of an ongoing or potentially valuable business or personal relationship. Since mediation is a collaborative process—and quick—it can help you preserve important relationships and foster new ones. If people can work through a dispute in a collaborative way to achieve a prudent, businesslike resolution, they are much more likely to continue to do business with each other and to continue the relationship.

Since 2008, I have been co-teaching (with U.S. District Judge Dan Aaron Polster of the Northern District of Ohio) a full-semester course on mediation at Cleveland State University's Cleveland-Marshall College of Law. I tell our students on the first day of class that mediation is the wave of the future. Mediation is not without disadvantages—one of which is the possibility that you will pay for a mediator and a lawyer and not reach a resolution—but, in most situations, the advantages substantially outweigh the disadvantages.

So before litigating your next dispute, consider mediation. Ask your lawyer to recommend, in conjunction with your adversary's lawyer, a good mediator. If you are not able to resolve the dispute through mediation—and the vast majority of disputes do resolve themselves in mediation—you are still free to pursue litigation through the courts.

—Matt Fitzsimmons