GENERAL DIFFERENCES BETWEEN MEDIATION AND LITIGATION

• In Mediation the Parties to the Mediation arrive at their own solution based upon the facts which they know to be true.
• In Litigation in the typical Divorce or Business Dispute, a Judge (in Pennsylvania Family Disputes are decided exclusively by Judges) or a Jury determines what the facts are, based upon what is allowable in evidence and what each party is able to prove given the limitations of evidence.

COST COMPARISONS BETWEEN MEDIATION AND LITIGATION

• In Mediation the Parties determine who pays the cost of the Mediation at the initiation of the Mediation. Expert witnesses, such as Real Estate Appraisers, Engineers, Physicians, or Accountants and Economists, if any, are chosen for the information which they are able to provide to the parties to reach a resolutions to their disputes. While Attorneys are a necessary part of Mediation to safeguard the legal rights of their clients and to review Mediation Agreements to ensure that all important matters have been addressed and resolved, the Attorneys work does not involve preparation of voluminous documents in response to discovery requests, multiple trips to Court with both parties paying their Attorneys to sit in hallways waiting for Hearings, filing of Briefs and Exceptions, multiple depositions and subpoenas, and other matters that are routine in traditional Court resolutions.
• In Litigation the parties pay for their own experts whose views are often largely dependent on the view of which party is paying the expert to appear. In addition, both parties are normally paying Attorney's Fees for two or more attorneys whose presence is absolutely necessary at every Deposition, Hearing, Motion, and other proceeding. In Litigation of Family and Business Disputes the party with the most money is generally able to win provided that the party does not care about the effect on the other party and is willing to spend the money to achieve their victory.

FINAL RESOLUTIONS AND FLEXIBILITY

• In Mediation the Parties enter into agreements as they resolve their disputes. The agreements are consensual. The Parties may wish to renegotiate matters when their agreements become unacceptable to one party, such as where a family wage-earner suffers a reduced income and is unable to afford agreed upon support or where a mother of a young child needs child care support to return to employment. In business disputes a tax change or a change in corporate law may lead the parties to renegotiate as well as in family situations.
• In Litigation a Decree or Judgment is entered. That Decree or Judgment may be appealed but that is a form of modification that may take several years and it is not an efficient form of modification because the right to appeal is severely constrained. It is not a new Trial as most people think and the facts found by the Judge or Jury are the facts upon appeal, even if the Judge or Jury decided those facts incorrectly. If one party is simply unable to comply with the Decree or Judgment that party's options may be limited to Bankruptcy or even flight to avoid being imprisoned for contempt.

RIGHT AND WRONG, WINNERS AND LOSERS

• In Mediation the concept of right and wrong is balanced rather than absolute. A party who expects to win a total victory in Court because, for example, the other party did not pay for a delivery of a product or did not pay full purchase price may often be disappointed because even a total victory will be reduced by litigation costs. Similarly, a Wife who is divorcing her husband for Child Abuse may be outraged that a Court will allow her abusive Husband to have any contact with their children. Mediation cannot offer total victory for either side of any dispute.
• In Litigation there is generally a winner and a loser. In most family disputes it is difficult to determine which is which. In business disputes it is generally clearer but in many business disputes a total victory in Court leaves the victor with a Judgment that the other party will do almost anything to avoid paying, including forming multiple corporations, transferring assets to family members, concealment of assets, and even outright criminal fraud. Even with reputable businesses a loser in Court may simply be forced out of business.

CONCLUSION

• MEDIATION is not the answer to every dispute between people in Family and Business matters. In some situations the Courts are absolutely necessary and the only recourse for a person or company is to file a lawsuit.
• LITIGATION is not the answer to every dispute either. The cost of Attorneys' Fees alone render litigation impracticable for the vast majority of family and business disputes and MEDIATION offers the most practical solution in that majority of disputes.