Control, Creativity, Closure: The Mediation Advantage

In a world rife with conflict—commercial, interpersonal, organizational and beyond—the need for effective dispute resolution has never been greater.

Judge Morton Denlow, a retired U.S. Magistrate Judge, offers this perspective from the bench and the mediation table:

As a retired judge and mediator at JAMS with over 30 years of experience—and having conducted several thousand settlement conferences and mediations—I have witnessed firsthand the transformative power of mediation and become deeply committed to its advantages over litigation as a method of resolving disputes.

Harshitha Ram, President of the Global Arbitration Mediation Academy and a JAMS ADR Fellow, expands the view with a global lens:

As a globally respected ADR authority and president of the Global Arbitration Mediation Academy, I have led high-stakes mediations and shaped the practice of dispute resolution by training legal professionals, judges and institutions across three continents.

Together, they offer distinct yet complementary perspectives to examine a critical question: When disputes arise, which path truly serves the client’s interests: litigation or mediation?

The Forward-Looking Path vs. Backward-Focused Adjudication

Mediation creates two basic forward-looking choices for parties; Do we settle, or do we proceed down the path to litigation? A forward-looking path allows for possible creative resolutions to satisfy all parties. Mediation provides a unique opportunity for parties to look ahead—toward resolution, closure and future relationships. Unlike litigation, which fixates on who was right in the past, mediation asks: What outcome serves everyone’s best interests moving forward? This future-focused lens is what makes mediation so powerful. It allows parties to craft solutions that account for not only legal rights, but also business objectives, reputational interests and emotional closure. In our combined experience, we have seen how forward-looking conversations often lead to more meaningful, lasting resolutions than any court ruling could offer.

Control and Confidentiality vs. Formality and Finality

Mediation is a confidential, voluntary process where a neutral third party—a mediator—helps parties in conflict to reach their own resolution. It operates as a problem-solving session, where parties can be more open, be informal, be engaged and feel heard. It puts the clients, with the assistance of counsel, in control of the outcome. The clients can play an active role in formulating a creative business resolution. In mediation, the parties—not a judge or jury—retain control. With the help of a skilled neutral, they shape their own outcome through dialogue and compromise. That control empowers them, and confidentiality encourages honesty. Mediation is inherently flexible and informal, as the tone is collaborative rather than adversarial.

In contrast, litigation is a public process where the parties argue their case before a judge or jury, which ultimately decides who wins and who loses. Litigation is a process rooted in formality and governed by procedural rules and legal principles such as statutes and case law. At trial, clients play the role of witnesses, and the focus is on past events.

Experience by Choice vs. Judge by Chance

Another distinct advantage of mediation lies in the ability to choose your neutral. Parties can select a mediator whose subject-matter knowledge, professional background and interpersonal style match the complexity and nature of the dispute. A mediator who understands the nuances of the law and the emotional undercurrents of conflict can facilitate deeper conversations that lead to real progress. Litigation, on the other hand, assigns judges at random. While most are highly competent, parties rarely have input into who presides over their case. And judges are usually not tasked with helping parties find common ground. Judicial time is limited, and judicial participation in the settlement process represents a relatively small portion of their duties.

Mediation Tools That Move the Needle

As mediators, we’re often asked what happens when parties reach impasse. Fortunately, mediation is not one-size-fits-all. There are tools that experienced neutrals use to break gridlock:

• Mediator’s proposal: At the conclusion of a mediation where the parties have not reached an agreement, the parties can request the mediator to propose a settlement to both parties with the option to accept or reject it.
• Double-blind settlement technique: The mediator facilitates settlement through the exchange of proposals only to the mediator, who then advises the parties whether an agreement has been reached.
• Brackets: Negotiation ranges (e.g., “We’ll go to $X if you’ll come up to $Y”) foster momentum without premature commitments.
• Bringing Clients Together Without Counsel (But with Counsel’s Permission): This can be a useful tool where the mediator can work with clients who enjoyed a good relationship prior to the litigation.

These techniques, coupled with evaluative input from an experienced mediator, reality testing and active listening, allow mediators to help parties engage meaningfully.

Timing and Efficiency

The mediation process is often significantly faster than litigation. Once a mediation date is set and the parties exchange their mediation statements, resolution frequently occurs during the mediation session itself—often within a single day. By contrast, litigation can drag on for years, with mounting costs, procedural delays, and entrenched positions. Engaging in early mediation—before discovery expenses escalate and relationships deteriorate—can preserve goodwill, reduce risk, and minimize emotional toll. In our experience, this approach saves not only time and money but also valuable energy and focus.

Creativity and Customization vs. Rules and Rigidity

Mediation allows for creative, customized resolutions. Parties can resolve a single issue or craft a global settlement. They can agree on creative business solutions, apologies, revised contracts, and renew, repair or enhance relationships. Litigation is inherently binary: win or lose. Legal remedies are limited to what the law allows, and even a “win” may come at great cost. In mediation, we see parties leave the session with not only signed agreement, but also restored dignity and closure. Seeing people leave a mediation with their dispute resolved provides us with great personal satisfaction in our work.

So, Which Is Better?

Litigation is essential when legal precedent is at stake, one party refuses to negotiate in good faith or coercive power is needed. But for the vast majority of disputes—between business partners, neighbors, co-parents or colleagues—mediation is the more constructive path because its focus is on problem-solving, not winning or losing. It doesn’t just solve problems; it can also restore communication and preserves relationships. As mediators, our goal isn’t just to help parties find a number or sign a deal. It’s to restore some sense of peace and control in a process that can feel chaotic and overwhelming. We value each person’s input and work to make sure they leave the negotiation table with control over the settlement they made and allows them the certainty and closure that a courtroom may not deliver. Mediation works!

Hon. Morton Denlow (Ret.) joined JAMS in 2012 after more than 16 years as a U.S. Magistrate Judge in the Northern District of Illinois. Known for his creative problem-solving and practical approach, Judge Denlow is a trusted neutral in complex, high-stakes disputes.

Harshitha Ram, Esq., FCIArb, is an internationally recognized arbitrator and mediator, currently a JAMS ADR Fellow in Detroit, with deep experience in both U.S. and cross-border dispute resolution. She chairs the ADR Section of the Detroit Bar Association, co-chairs the Arbitration Committee of the American Bar Association, and serves as the ICC Young Arbitration & ADR Forum (YAAF) representative for North America. She also leads ADR accreditation programs globally as president of the Global Arbitration Mediation Academy, teaches at Michigan State University and Northeastern Illinois University, and serves on prestigious national and international panels.