It should be noted that Mediation and other forms of ADR can NEVER replace the courts but it is to be seen as part of the court system and this has been done with the establishment of the Lagos Multi Door Courthouse (LMDC) which is primarily aimed at resolving disputes.
Mediation and every other form of ADR is achieving justice by consensus and the aim of this page is that
it is hoped that only cases which should be in the courts get to the court.
THE BENEFITS OF MEDIATION OVER LITIGATION (I)
i. Litigation is formal and looks backward in time at what has occurred.
ii. Many winners find that in real terms, taking into account, time, irrecoverable costs and
aggravation, they have not won anything at all.
iii. It imposes a binding solution based on legal liability where inevitably one party or the other is likely to be dissatisfied since the process is designed to attribute blame.
iv. The expense and costs regime may make even the winner dissatisfied.
v. It removes control of the dispute from parties, first by vesting it in the lawyers and then in the court’s administration and management system.
vi. It addresses issues in a purely legal context, in the public eye, with foxed pre-determined remedies that you either obtain or fail to obtain.
vii. It is slow, expensive and more often than not destroys a relationship as a result of the victor-vanquished mentality.
viii. In contrast, Mediation is an informal, very flexible procedure with no imposed solutions and
looks forward in time from where the parties are at presently.
BENEFITS OF MEDIATION OVER LITIGATION II
i. It gives better results because control remains directly in the hands of the parties as decision
makers.
ii. Win or lose, it is comparatively quick and cheap as a self- contained process.
iii. It saves management time.
iv. It is private and confidential.
v. As a dynamic, it actively promotes renewal and reconciliation because it has been structured to restore relationships.
vi. Litigation looks to find fault; Mediation does not.
vii. Mediation makes a particularly attractive route where parties are likely to continue to have dealings and interact in the future, whether in business, as neighbors or within the confines of some close personal relationship or physical proximity. This is of particular interest in Landlord/Tenant, Vendor/Purchaser, Principal/Agent and other neighbor relationships, as well
as trading partners.
BENEFITS OF MEDIATION OVER LITIGATION (III)
i. It is usually less expensive than litigation which goes all the way to judgment.
ii. Mediation provides litigants with a wider range of solutions than those that are available in litigation; for example, an apology; an explanation; the continuation of an existing professional or business relationship perhaps on new terms.
iii. It can create an agreement by one party to do something without any existing legal obligation to do so.
iv. It is desirable to be able to control the outcome of the dispute rather than have it imposed upon you, potentially leaving both parties dissatisfied by the experience.
v. The absence of a trial not necessarily wanted by both parties has its advantages; reduced costs, no full trial preparation, the litigation is not so protracted and the absence of findings of fact that might subsequently be used by one of the parties.
vi. Generally, there is a very speedy resolution.
vii. Those interests which are of real importance to either or both parties will not be obscured by technical or legal issues advanced by the lawyers within the framework of the litigation.
viii. There may be no real point in trying to fight a legal principle where the determinative legal issues are already well settled.
ix. One or both parties may have good reasons to avoid the publicity which potentially at least is always thrown up by litigation whether at a local or even national level.
THE BENEFITS OF MEDIATION OVER LITIGATION (IV)
i. Where each side has some merit, this may be reflected in a fairer outcome than the court is able to provide.
ii. There may be a need to avoid an adverse precedent and this consideration may attach itself to both sides.
iii. One or both parties desire that for commercial or other reasons, the existence of the dispute itself should not become known.
iv. A party has trade or business secrets which it would prefer not to reveal but which might become public if the case went to trial.
v. A mediator will help diffuse the emotion or hostility that may otherwise bar any settlement.
vi. The uncertain outcome of a trial is generally a good reason to mediate.
vii. Mediation is so informal that if a contractual contract does not recognize any Alternative
Dispute Resolution option, mediation may be scheduled by mutual agreement of both parties to the contract.
Footnotes:* Standing Conference Of Mediation Advocates (SCMA) *The Lagos Multi- Door Courthouse Law (LMDC) 2007*
The LMDC Practice Direction on Mediation Procedure* The Multi Door Courthouse Code of Ethics for Mediators* Guidelines
For Enforcement Procedure *Guidelines for Court referrals to Alternative Dispute Resolution *Principles of Alternative
Dispute Resolution by Stephen J.Ware *Effective Mediation Advocacy by Andrew Goodman *
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