Legal proceedings or mediation: 5 questions to ask yourself to make the right choice
A few years ago, a proposal to hold mediation might have been seen as an admission of weakness on the part of a person who feared that the courts would rule, but attitudes have now changed, considerably.
Mediation is now encouraged by all professionals, it can be imposed by judges and it is sometimes institutionalised in certain companies or sectors.
The way in which mediation is organised is flexible, and can be freely decided by the parties involved: meetings can be held in person or by videoconference, the mediator can be a lawyer or another technical professional (such as an accountant), and the number of meetings, the time spent and the subjects dealt with are left up to the parties.
But mediation is not always the solution to every problem, and sometimes the courts are still the best way to resolve a dispute. So how do you choose?
Court proceedings or mediation ? These are the 5 questions to ask yourself to make the right choice:
- How much money am I prepared to spend on this dispute?
- Will I have to deal with the disputing party in the future?
- What are the chances that I will get 100% of what I want?
- How much time are you prepared to devote to this dispute over the next few months/future years?
- How complex is my dispute and who are the parties involved?
How much money am I prepared to devote to this dispute?
This is the first key question to ask yourself. You may not realise it at first, but legal proceedings are always long and costly.
You should allow at least a whole year for an initial decision, bearing in mind that an appeal is always possible in principle. You can count on at least another one to two years for the appeal procedure.
In the meantime, you will have to pay lawyers' fees and procedural costs.
Mediation can lead to a compromise agreement in one or more meetings.
In both procedures, the outcome is uncertain, but the time and money spent on mediation are much less.
This aspect must be seriously considered before making a choice.
Will I have to deal with the disputing party in the future?
There are situations in which, even if you have a dispute with someone, you know that you will have to deal with them in the future. This is particularly the case:
- People in the same family
- Neighbours
- Business partners in a closed market
- Players in the same economic sector.
If you are sure that you will no longer have to collaborate with the person in dispute, it will be easier to consider legal proceedings.
If, on the other hand, you find yourself in a situation where you will have to continue to live with the ‘adversary’, mediation can help not only to settle the points of conflict but also to de-minimise potential future problems.
What are the chances of me getting 100% of what I want?
An initial analysis of your position and what you are asking for should be carried out by a professional.
He or she will show you the strengths and weaknesses of your situation.
You should also bear in mind that, even if you are certain of your rightful claim, there is always a large element of uncertainty in the outcome of legal proceedings and you will never be certain of coming out of them with 100% of what you are asking for.
If, despite these warnings, you are convinced that your position will be upheld in its entirety, and you obtain such confirmation from a professional, legal proceedings may be the way to go.
If, on the other hand, you envisage the possibility of a contingency, with the consequence that you would be prepared to give up a little ballast, the initiation of mediation will be an option worth considering.
How much time are you prepared to devote to this dispute over the next few months/years?
As we have already indicated, legal proceedings involve several months, or even several years, of work.
You have to be aware from the outset, before you start such proceedings, that it will take a lot of energy and time to ensure that they are properly handled, in the hope of winning your case.
This is an essential issue, and one that we are not always aware of when the conflict is at its height.
If you decide from the outset to make the necessary time available throughout the legal proceedings, then this will enable you to manage the legal decision in the best possible way.
If, on the other hand, you are afraid that you will not be able to keep up with the dispute, and that your teams will, for example, be dedicated to other activities, an attempt to resolve the dispute more quickly, through mediation, could be an interesting option.
How complex is my dispute and who are the parties involved?
This question is far from trivial: our country's courts have to deal with a wide variety of problems, and proceedings are public.
Although the courts are divided into specialities, judges (even specialised ones) cannot deal with all matters.
Highly specialised and technical issues often arise in the course of a dispute, and there is therefore a legitimate fear that the judge called upon to settle the dispute will not be an expert in the matter in question.
If it is established, with the help of a legal professional, that it would be more advantageous to examine the issues raised with the support of a truly specialised person, mediation will be a process that is not without its advantages, since the parties are free to choose the person who will act as mediator.
If the issues to be dealt with are more traditional, the court option should not be ruled out for this reason.
Finally, there are many sensitive disputes that those involved would prefer not to be covered by the media. Since hearings are open, it is common for journalists to attend.
Mediation, on the other hand, is a completely confidential procedure and the secrecy of the discussions held is therefore guaranteed.
Conclusion
There is no single criterion for choosing the most appropriate method for settling a particular dispute.
It is advisable to carry out an overall analysis of the situation at stake, asking yourself a number of good questions, with the help of a legal professional.
This will never be a wasted analysis, but will provide valuable food for thought, helping everyone to save time and money.