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About to Litigate because of a Personal Injury Case? Mediate Instead!

We live in a litigious society. Some would say it is an overly litigious one. The costs of litigation, both financial and temporal, continue to increase, while the satisfaction and sense of justice sought by the parties involved are very rarely met. On matters both big and small, claimants seeking a sense of fair play, and a desire to be truly heard, are finding our adversarial system of law to be lacking in fundamentally basic ways. Due to the recognition of the flaws in our system, average citizens, attorneys, and law makers alike are looking for and developing alternatives which can address the very real needs of those who do not feel properly served by the courts as they have traditionally played their role. One of the most interesting alternatives to standard litigation practices is alternative dispute resolution, also known as mediation.

Mediation is a process by which an appointed mediator attempts to help both parties come to a common agreement which addresses the issues of their dispute, without having to go through the process of litigation. At its most basic level, the mediation process is about finding some kind of common ground between two opposing parties, no matter how small. It is from this sliver of common ground that the heart of the matter can be brought to light. Oftentimes, disputes over material matters, or other issues, mask deep seated points of contention that the claimants themselves often are unaware of. Mediation attempts to shed light on those underlying points through a form of guided communication. The mediator acts as a facilitator who helps the claimants themselves discover what is really at the heart of their argument, and then build a solution to that argument together. This is not a novel process. It has been used, quite successfully, for centuries in many different ways. From "shuttle diplomacy," as used by heads of state, their ambassadors, and their department heads when creating deals to end international conflicts, to marriage counseling, mediation is a societal tool that thrives on communication, with an emphasis on community, as opposed to zero-sum adversarial "competition." It is only recently that academics and practitioners of all stripes have pushed to make mediation a more integral part of our justice system.

Beyond its more idealistic intentions, mediation is also a matter of pragmatism. Litigation is expensive. It is time consuming. And as stated earlier, it rarely leaves the parties feeling like they have attained a sense of justice and fairness. Especially in large cities, like New York and Los Angeles, whose court dockets are never less than completely full, mediation is a practical means by which claims can be addressed while keeping the cases that simply must go through litigation for resolution to move forward in a more efficient manner. This allows for a court system that is less bogged down by an overload of cases, and consequently, a clearer and more capable system that can address each claim in better, more focused ways.

To learn more about mediation, one should seek out actual mediators, or attorneys who deal in these matters, and determine if mediation is a good avenue to take when attempting to address a claim. Mediation is not a cure-all, and sometimes litigation is simply a necessity, but it is a growing area and a genuine alternative to a justice system which is slow to evolve, but must. It is worthy of consideration for any dispute you may find yourself in.