Features of The Litigation and Mediation Process

There are various features of both the litigation and mediation processes, each affecting the parties to a dispute. Determining these effects depends on the process, what approach is taken by the third parties, the role of the third party, the subject of the disputes and the binding nature of the final outcome. The objectives of each process also play a vital role in determining the impact that is felt by parties.

There are a multitude of features of litigation which have a variety of effects on the parties of a dispute. Litigation, otherwise known as Legal Disputation, are civil legal proceedings in a court between contesting parties, in which the plaintiff commences an action in which a court is asked to determine the dispute between the plaintiff and the defendant or defendants. The rules and basis that governs litigation is the adversarial system of trial, which involves two opposing parties fight to win their case. The role of the adversary system is to determine the way parties resolve their disputes, each role in this system has various effects on the parties and the litigation process.

For example, the role of the judge or magistrate in the litigation process is to act as an independent, impartial and unbiased umpire. Among various other responsibilities including ensuring the rules of evidence and procedure are followed, the judge must determine the outcome of the case and the appropriate remedy (unless there is a jury) according to the law, the facts of the case and legal precedent. As stated by James Burrows Thomas, “independence, impartiality and service to humanity are the three primary imperatives underlying our system of judicial ethics…without which the system would fail because the necessary public trust in the...

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...ions, just as litigation isn’t. It has been suggested, “…mediation is most effective where the adversarial litigation process is weakest, namely where there is a longstanding relationship” . Some disputes such as neighbourly or family disputes are seen as suitable for mediation while disputes where no continuing relationship exists, there is violence or an imbalance of power are more suited to litigation.

There is a huge contrast in the features of both the litigation and mediation processes, each having a different effect on the parties to a dispute. Whether this be the advisory versus non advisory roles, the nature of the relationship between parties, the binding nature of the final outcome, the formality of the process, or even the objective (past and future) of the process, each aspect plays a key role in how parties react to each dispute resolution method.