Mediation

Advantages of Mediation as Compared to a Lawsuit

As compared to a lawsuit, mediation offers the following benefits:

Win-Win

In a mediation, the parties themselves are responsible for finding the appropriate solution based on a careful prior analysis of each of their needs and interests. Ideally, both parties emerge from the mediation process as “winners”. By comparison, a lawsuit is based solely upon the rules of the law and their interpretation by the judge in charge of their case. Since the law serves as a “safety net” for people who cannot reach an agreement on their own, it cannot address or can only peripherally address the individual concerns of the parties and the non-legal aspects of the conflict. By comparison, mediation allows for a full-scale resolution of the individual conflict situation. The outcome of a lawsuit is also difficult to predict. At the end of a trial, there are almost always winners and losers, which has a negative effect on the relationship of the parties and makes further cooperation difficult.

De-escalation

While a lawsuit always bears the risk that it will intensify a “war of the roses” in which dirty laundry is washed in the form of lawyers' briefs and the opposing side is painted in the most negative light possible in order to further one's own goal, a mediation process has a tendency to de-escalate a conflict. The maintenance of a functioning relationship has priority over the tearing down of the other party. There is no reason in a mediation to get nervous before the “day of decision” because the participants themselves decide whether, when and how they will reach a final solution.

Cost savings

Generally speaking, mediation is less expensive than a lawsuit led by lawyers. This is especially true if the mediator is legally trained (lawyer mediator) and can judge the legal sustainability of the agreement itself so that the parties do not, for example, negotiate a non-enforceable agreement. Although lawyer costs are also incurred in a mediation through the involvement of the external lawyers, those costs are generally significantly lower than the costs for lawyers representing the parties in out-of-court and court proceedings.

Individual time schedule

The participants determine the pace of the mediation. They can end the mediation process at any time or pause the mediation process if necessary. They can also reach a quick and satisfying solution in only a few meetings if they really focus on it. By contrast, the timing of a lawsuit depends on the schedule of the court. It is not uncommon for court proceedings in controversial family matters to last up to three years. In some cases, in particular when the court decisions are appealed to courts of higher instance, it can take even longer.

Better communication

A mediation often has positive side effects. The participants learn to listen more to each other and to improve their communication. This can avoid future conflicts.

Koenigstein bonus

Other features of a mediation in my law firm include: The meetings generally take place in a calm and concentrated working atmosphere. The meeting rooms are located in a discrete location in Koenigstein in a large apartment within an old villa. There are break-out rooms in which the parties can withdraw or have one-on-one talks with the mediator. I plan ample time for all mediation sessions and provide for a disturbance-free setting. The parties can always take breaks during the mediation sessions.

The benefits of mediation have also been recognized by the German legislature. Not only has mediation been regulated in a specific law, the Mediation Act (Mediationsgesetz), in 2012, but the German legislature has established mediation as a pre-court procedure of choice before commencing with a formal lawsuit. That means that to the extent that the parties agree to take up their dispute in court, they have to be aware that the court may send them back to try mediation first. This is evidenced by the fact that pursuant to the German Civil Procedure Act (Zivilprozessordnung, ZPO), any statement of claim made before a civil court must provide information as to “whether, prior to the complaint being brought, attempts were made at mediation or any other proceedings serving an alternative resolution of the conflict were pursued, and shall also state whether any reasons exist preventing such proceedings from being pursued.” It is therefore advisable to attempt an out-of-court mediation before going to court if only to prove to the court the party’s general willingness to come to an agreement.