Mediation is a voluntary process which can be initiated by either party to a dispute, or their counsel. Unlike a judge or an arbitrator, a mediator, who can be appointed by a court or administrative agency, or privately selected by the parties, does not listen to a formal presentation of witnesses and evidence and then impose a decision on the parties. Instead, a mediator is trained in facilitative skills, and assists the parties to communicate and negotiate, identify common interests and goals, and resolve underlying issues so that the parties are able to come to an agreement themselves that each side is comfortable with. Legal counsel may or may not be involved. The mediator does not provide legal advice, but may provide the parties with information about the law that the parties may want to consider in reaching a resolution. Finally, a skilled mediator will offer creative options and alternatives to assist in resolving the dispute that the parties may not have previously considered.
Litigation is based on the adversarial trial system, where one side is pitted against the other, and only one side will prevail. Both parties are usually represented by legal counsel. The matter is presented in a civil , mercantile, administrative, criminal or labor Court, where arguments are made, witnesses testify and are cross-examined, and documentary evidence is presented. Formal rules of evidence and procedure are followed. Ultimately, the judge or the tribunal renders a decision, in accordance with specific applicable law. That decision can be appealed, and then, appealed even further to a still higher court.
WHICH ALTERNATIVE TO CHOOSE?
When evaluating which dispute resolution method will work best in any given situation and a lots of factors should be considered.