Aspect | Mediation | Litigation |
Voluntariness /Control | High. Parties decide to mediate; decide on mediator; more control over process, timing, content, outcome. Both NZ and AU mediation rules emphasize party choice. | Low to medium. Once court proceedings commence, many aspects are governed by statutes & rules; schedule, procedure etc. Courts control much. |
Formality & Adversarial Nature | Informal, non-adversarial. Evidence rules relaxed; mediator assists dialogue. Less about legal technicalities. | Highly formal. Adversarial: parties present case, cross-examination, strict rules of evidence, legal representation essential. |
Confidentiality & Privacy | Highly confidential. What is said in mediation is generally “without prejudice” and not admissible in court, unless parties agree otherwise or there are legal obligations that require disclosure, such as risk of serious harm or evidence of criminal activity or fraud. | Litigation is public: court files, hearings, judgment records are normally open to public and media. |
Flexibility of Solutions | Very flexible. Parties can craft outcomes tailored to their needs (non-legal remedies, ongoing relationships, creative solutions). | Outcomes bound to legal remedies: damages, injunctions, declaratory relief etc., defined by law. Less room for novel/relational solutions. |
Timelines / Speed | Typically faster. Mediation can be arranged comparatively quickly. Avoids pre-trial discovery, interlocutory applications etc. | Slower. Pre-trial steps (discovery, pleadings, motions), scheduling delays, appeal process. Even after judgment, enforceability can add time. |
Cost | Much lower in many cases. Fewer hours of legal work, no formal court fees, less procedural overhead. | Higher costs: lawyers, experts, court filing & hearing fees, longer preparation, possible appeals. |
Binding / Enforcement | Agreements reached in mediation are only binding if made into a contract, or if the parties apply to court for a consent order (in some areas like family law). Otherwise parties’ compliance depends on goodwill & negotiated terms. | Decisions from court are binding, enforceable, with defined legal consequences. Court orders backed by legal enforcement mechanisms. |
Suitability / When Needed | Suitable when parties want mutual agreement, preservation of relationships, confidentiality, less adversarial approach. When legal certainty less critical or when a court decision might be overkill. | Necessary when parties can’t agree, when legal precedent or formal legal right must be established, urgency requiring coercive orders (injunctions), or when one party refuses mediation. |
Risk / Power Imbalance | Risk if one party is much stronger/weaker, or there is coercion, or safety issues. Mediators try to manage this by ensuring fairness, but no formal powers to enforce. | More safeguards built in: rules of evidence and procedure; courts expected to ensure fairness; legal representation helps level the field. |