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Litigation vs. Mediation: What Boundary Disputes Can Teach Us

Posted By Center for Mediated Divorce || 2-Mar-2015

Mediation can be an extremely beneficial tool in legal disputes. In few cases is this more evident than in boundary disputes. In assessing the recent case of Bradley v Heslin, the ruling judge provide meaningful insight on the necessity of mediation in this types of matters. The case judge blatantly admitted that mediation is often much better in these cases where even the “winner” is ultimately loosing due to the excessive costs involved. Taking issues of boundary disputes, just as with family law matters, immediately to court instead of attempting mediation can be detrimental. Not only can it result in wasted legal resources, but can also cost parties significantly more.

In neighbor disputes, mediation can be much more impactful than many parties realize, especially when both have dug in their heels and intend to stay where they are at. The judge in the Bradley v Heslin case reminded parties that just because legal action had been initiated, it didn’t cut out the option of bringing in a trained mediator. No doubt, just like in many cases, mediation would have led to a much more satisfactory outcome for all parties involved than the restricted judgment of the court.

Can the court enforce mediation on parties?

Trivial cases can cost the court money and resources, making the idea of mandatory mediation in these situations even more appealing. But as of now, the court does not typically require unwilling parties to mediate in these types of cases. This is what makes directing individuals to mediation without the power of requiring or enforcing such mediation a challenging strategy to employ.

However, could simply imposing such a mediation window upon reluctant parties be nearly the same as ordering them to mediate? The idea of ordering mediation becomes strengthened when considering the notion that they cannot be forced to settle, only mediate. This would then only be another step to assist individuals with avoiding unnecessary costs and time-consuming processes in litigation.

The second challenge is that though the court could move to require mediation or enforce it more strictly, mediation itself would not guarantee an agreement. Still, without this power, it makes it continually challenging for judges to impose what can be seen as common sense solutions for litigating parties. While judges are restricted to applying the law, even when they know it fails the parties involved, mediators have the power to provide practical solutions that can help individuals save on legal fees.

Again, while there is no guarantee that mediation will result in a settlement or agreement, it does provide the avenue for more reasonable solutions and less costly legal services. Though parties may still be unwilling to compromise, judges still can justify requiring mediation with the expectation that it could save individuals extensive time and money while sparing the court dwindling legal resources.

The Price Tag of Mediation vs. Litigation

There is no doubt that litigating is more expensive. That is why it should be assumed that your lawyer would avoid litigation if at all possible, right? Unfortunately, this is not always true. In many cases, attorneys have been found to have opted to pursue frivolous litigation over mediation in favor of the higher price tag. When they represent a client during courtroom proceedings, their pay check is often much bigger than in the case of mediation. Some lawyers don’t even offer mediation services, further stoking the flame of misleading expenses. Clients should be aware of the services their advocate offers. If they want to pursue mediation, will their lawyer guide them through this process, or refuse to back down from litigation? Are they leading their client to litigation for their own benefit or because it is the best option? It is crucial that individuals stay aware of these matters.

Overall, it seems that mediation––whether in boundary disputes or child custody matters––is becoming more popular and effective than litigation for many cases. This may ultimately change the way that minor cases and disputes are handled by the courts in the future, though all parties involved will need to ultimately embrace the idea.

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