Litigation v Mediation
Nurmatha
A new phenomenon that is now prevalent worldwide is the rise of alternate dispute resolution methods to litigation. Increasingly, litigation is being seen as a cumbersome process and mediation or arbitration is preferred in resolving legal issues. However, many lawyers still seem to be reluctant to mediate and seem to prefer litigation. This article will offer possible reasons as to why lawyers may prefer litigation to mediation and then put forth an argument as to why mediation is clearly the better choice.
Lawyers may prefer litigation because given that they have been trained in an adversarial way to resolve disputes, arguing a case is something that they feel comfortable with. This is in contrast to mediation, which requires them to be more compromising and is in essence, a more collaborative approach that may be outside their comfort zone.
Another reason that lawyers may choose not to embrace mediation might be because of the lack of publicity involved in mediation. In most cases, disputes solved through litigation are public and in some instances may even be widely reported by the media. This is opposed to mediation, which is highly confidential. Lawyers may thus prefer litigation as the attention that is garnered by a case serves as good publicity for them. Therefore, the public process of litigation has the potential to help a lawyer to attract more clients. In comparison, very few mediation cases receive publicity and thus lawyers who engage in mediation do not receive much recognition. Consequently, lawyers may thus choose not to embrace mediation. Lastly, one of the unavoidable truths is that litigation is better for a lawyer’s financial interest as opposed to mediation. In the Singapore Court of Appeal decision of Lock1, the parties were involved in a motor accident. The appellant initially filed a claim for $375 but after going to the Primary Dispute Resolution Centre (PDRC), the parties made an agreement that the appellant would receive $187.50 as compensation, costs of $1000 and reasonable disbursements. However, they could not settle on the amount to be disbursed and were in dispute over a difference of $60.35. This case was brought all the way to the Court of Appeal. In their judgment, the judges greatly condemned the behavior of the lawyers who were acting for the two parties in Lock. While the matter in dispute was only $60.35, the lawyers had brought the matter all the way to the highest appellate court, causing their clients to have to pay exorbitant legal fees to them. Litigation is clearly a more financially enticing option as compared to mediation. The aforementioned reasons are some of the possible reasons that lawyers might prefer litigation to mediation. However, these reasons are based on lawyers’ personal and financial interests rather than the interests of society as a whole. For this reason, it is important for lawyers to embrace mediation, which offers many advantages over litigation. If used early enough in a dispute, mediation tends to resolve them much faster, greatly reducing the legal fees involved. This in turn makes the law more affordable and accessible to the general public. Moreover, mediation is a more flexible approach. Through mutual communication and agreement, parties have an opportunity to understand each other’s issues better and come to a compromise that benefits both sides.
Hence, it is important to raise awareness about mediation so that more lawyers can be encouraged to embrace it. Relevant courses can serve to educate lawyers about the benefits of mediation and lawyers’ roles during the entire process. For the benefit of society at large, it is vital that lawyers balance the interests of their clients with their own personal and financial interests and embrace mediation.
[1] Lock Han Chng Jonathan v Goh Jessiline, [2007] SGCA 56