If you are trying to resolve a legal issue, you may have the option to pursue both litigation and mediation. Because the litigation process is very different to the mediation process, it’s important to understand the advantages and disadvantages of each.
In this article, we explore litigation vs mediation, reviewing the advantages of litigation as well as when mediation might be a better choice. That way, you can choose the method that works best for your unique situation.
Understanding Litigation and Mediation: The Basics
Both litigation and mediation are methods used to resolve disputes. Let’s examine how they work so you have a better understanding of when each one might be chosen.
What Is Litigation?
Litigation is the process of settling a legal dispute in a court of law. It’s often used for business disputes in addition to personal cases, such as divorce and child custody, personal injury, and property disagreements.
One person, the plaintiff, initiates the suit with the courts, and then the defendant responds. Most civil cases in Canada are overseen and decided by a judge, but there are occasions where a jury delivers the verdict. In some criminal cases, defendants may have the option to select a trial by judge or jury.
What Is Mediation?
Mediation is a type of alternative dispute resolution where a neutral third party helps the parties involved reach an agreement outside of court. Typically, the mediator attempts to help each party resolve their differences by getting them to find common ground they can agree on.
Sometimes mediation involves compromise in lieu of getting everything you want. But as you’ll read below, it can be beneficial in certain cases, like relatively amicable divorce and child placement.
Advantages of Litigation
One key advantage of litigation is that it uses legal precedents to make a case for either the plaintiff or the defendant. That means using the outcome of prior court cases to convince the judge or jury that the decision should go a certain way.
How is that beneficial? If you have a dispute like one that has been heavily litigated in the past, chances are good that you will see a similar outcome for your trial. This is particularly noteworthy in personal injury cases, where damages are often based on previous trials with nearly identical concerns.
Enforceable Court Judgment
Mediation is only binding once the various parties sign an agreement, sometimes called a memorandum of understanding. However, there are instances where the language in the agreement or other special circumstances call into question the contractual nature of the mediation agreement, unlike with arbitration and litigation.
Court judgments following litigation, on the other hand, are enforceable. This may be especially important if you are involved in a personal injury case or want to ensure a child custody schedule is upheld with no ambiguity after a decision is reached.
Disadvantages of Litigation
Costly Legal Proceedings
One of the most common disadvantages of litigation is that it can be expensive and time-consuming. Much of that depends on the complexity of the case.
Trials that involve large amounts of research and evidence as well as expert witnesses or drawn-out testimony can go on for a long time. And that’s after waiting for a court date, where you are at the mercy of the court’s schedule.
In many instances, you need to pay your lawyer in advance—sometimes as a retainer to secure their services. There are different types of rates charged for the work, including hourly fees for the lawyer’s work as well as payment for paralegals and other assistants who participate in the case.
Adversarial Nature of Litigation
Going to court is not usually a pleasant experience between you and the other party. Whether you fail to reach a resolution through mediation or can go straight to trial, rancour can develop between the plaintiff and the defendant, damaging a relationship that was previously courteous.
Advantages of Mediation
Cost-Effective Mediation Services
Many people elect to try mediation prior to litigation even if it’s not mandated because it’s nearly always more cost-effective. For example, in a family court case in Ontario, the average mediation costs the parties less than $5,000. Litigating the case can run as high as $25,000 or more.
Speedy Conflict Resolution
We mentioned above that litigating a case can be a time-consuming endeavour. However, mediation moves much more quickly. A resolution can be achieved as fast as the parties are able to reach an agreement. This lets you move on with your life, whether you’re recovering from an accident or dissolving a marriage.
Confidential Mediation Process
Court cases are, in most instances, a matter of public record. You may not prefer to have your proverbial dirty laundry aired in public. Conversely, mediation is a confidential process between the two parties and the mediator. This makes it an ideal form of dispute resolution when privacy is a worry.
Disadvantages of Mediation
Non-Binding Mediation Agreement
As you read above, mediation agreements are not always binding. Could you live with that after investing the time in mediation? Some people prefer the certainty of an enforceable court judgment.
Limited Scope in Mediation
Mediation isn’t advisable in every case. There are situations where the complexity or nuances of the case make it unsuitable.
There is also the issue of potential power imbalance between the parties. Someone who is easily manipulated or intimidated may not get a fair agreement from mediation because they may feel compelled to submit to the other party’s every demand.
Litigation vs Mediation — Which One Is Right For You?
When Litigation Is Advisable
If you’re trying to decide whether litigation or mediation is the best path for you, here are some scenarios when litigation is likely the best choice:
- When the case is very complex and beyond the scope of mediation
- When time and money are not a concern
- When you want the ironclad result of an enforceable court judgment
- When you’re worried the other party would have undue influence in mediation
- When you fail to reach a resolution during mediation
When Mediation Is a Better Option
There are many situations where mediation is a fine option. These include:
- When Ontario mandates trying mediation first before a trial
- When you don’t have the time to wait for a court case
- When saving money is an issue and you want a cost-effective solution
- When the case is fairly simple and within the scope of mediation
- When the parties trust each other to approach mediation fairly
- When it’s important to maintain a relationship with the other party
- When having the potential for a non-binding agreement is acceptable
For many people in the Toronto area, litigation may be the best choice to resolve their legal dispute. If you believe litigation should be your first option, Toronto lawyer Allan Rouben offers a free consultation where you can get professional legal advice about next steps and how to proceed.