The Mediation Paradox: Collaborative Combat

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Litigation is, by definition, an adversarial process. It would be naïve to believe that the essentially contentious nature of a lawsuit or arbitration disappears when the parties agree to mediate. Nonetheless, mediation offers a unique opportunity for the parties to come together and maximize the chance that they will be able to resolve their dispute.

It is a virtually self-evident proposition that parties to a dispute forfeit a substantial degree of control over their case upon the filing of a lawsuit or arbitration. The “rules of the road” are established by the tribunal, discovery is often protracted and almost always very costly, the finder of fact - whether a judge, jury or arbitration panel – is determined with limited or sometimes virtually no input from the parties. The types of relief that may be granted are circumscribed by wel -established legal principles and whatever relief is awarded is likely to arrive only after the passage of many months, if not years.

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