What are the Pros and Cons of Mediation and Litigation?

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First in a series of three posts.

You have taken a big step. You have decided to speak out against a predator and/or the institution that failed to properly supervise them. You have two main legal paths to choose from, mediation and litigation. Understanding the differences between these two processes will help you make an informed decision that aligns with your ultimate purpose in speaking out.

Litigation is a formal process with several stages that includes testifying in court. It is public, but you can proceed under a pseudonym to help protect your privacy. Litigation can be lengthy, often taking 3 to 5 years, and includes the right to appeal if you are unhappy with the outcome.

Mediation, on the other hand, is a voluntary, private, more informal process aimed at reaching a settlement through a mediator and participating in mediation sessions. This process is generally faster, typically taking between 6 months to 1.5 years. If you settle your case, the settlement is voluntary, but is also final. You do not have a right to appeal.

Here are the pros and cons of each option:

Litigation

Pros:

  1. Formal Process: Litigation results in a jury verdict with a specific finding against a wrongdoer.
  2. Public Accountability: The public nature of litigation can bring broader awareness and accountability, potentially deterring future abuses.
  3. Monetary Awards: Under the law, a jury can compensate you for pain and suffering, medical/therapy bills, future anticipated medical/therapy bills, lost wages and future lost earning capacity.
  4. Appeal Rights: Child sexual abuse survivors have the right to appeal a jury verdict, but overturning a verdict is an uphill battle and requires retaining and paying by the hour for experienced appellate counsel.

Cons:

  1. Lengthy Process: Litigation can take several years (3 to 5 years, plus additional time for appeals), delaying resolution.
  2. High Cost: Litigation is expensive. Even when attorneys are paid on a contingency basis (meaning they only get paid if you succeed), there are high costs associated with litigation including the cost of deposition transcripts and expert witnesses.
  3. Public Exposure: Despite options for pseudonyms, the public nature of court proceedings can expose sensitive details about a survivor’s experience.
  4. Uncertainty: The outcome is decided by a judge or jury, which can be unpredictable and is out of your control.

Mediation

Pros:

  1. Speed: Mediation is generally faster, taking between 6 months to 1.5 years, compared to the lengthy litigation process.
  2. Privacy: The process is private, protecting the survivor’s identity throughout.
  3. Control: The parties work together regarding the choice of a mediator, the pace of the mediation process, and the outcome. The process is entirely voluntary, allowing both parties to agree on a settlement, or choose to walk away. They can be more creative than in the litigation process, choosing to expand a settlement to include non-monetary, as well as monetary, awards. We have pressed institutions to set up treatment funds for current and future survivors, destroy monuments to child predators, and initiate investigations. These types of resolutions tend to be incredibly meaningful and contribute to survivors’ overall wellbeing.
  4. Cost-Effective: Mediation can be less expensive than litigation as the costs tends to be lower. There are typically no depositions and fewer experts are needed because mediations tend to occur at an early stage of a claim.

Cons:

  1. No Formal Judgment: Mediation does not result in a legal judgment or finding of guilt, which might be important for some survivors seeking formal recognition of wrongdoing.
  2. Finality: Once a settlement is reached it is final. There is no right to appeal.
  3. Waiver of Claim: In exchange for a settlement, a survivor will waive all rights to sue a perpetrator and/or an offending institution.
  4. No Guarantees: Since mediation is purely voluntary on both sides, there is no guarantee that the other party will come to the negotiation table with realistic views of settlement. This can be incredibly frustrating and re-traumatizing for some survivors.

Conclusion

Choosing between mediation and litigation depends on your goals, the complexity of the case, your desired level of privacy and potential control over the outcome. We will be working with you side-by-side to navigate your options and help you make the best decision for your unique circumstances.

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