When Is Mediation NOT a Good Idea?


handshakeI was recently scheduled to mediate a case, but the day before the mediation was to take place, the plaintiff’s attorney called to tell me the case had settled. What? I thought. Without me?

But from the parties’ perspective, this was the best result possible—the case was resolved and they didn’t have to travel to the mediation or pay me. In fact, I suspect that the scheduling of the mediation is what prompted the parties to get serious about settlement. So I believe I had an impact in the case as a mediator, even though I didn’t get paid a dime.

In what situations do parties to a dispute not need a mediator?

As a starting point, let’s look at what mediation is. Mediation is a process in which a neutral person (the mediator) assists the parties to a dispute in reaching their own mutually agreed upon resolution of their differences. The parties—not the mediator, nor the judge or jury in a lawsuit—decide the outcome of the problem.

Given this description of the process, mediation is not necessary when

  • The parties have already agreed on how to settle their dispute

At that point, there is no need for a mediator, although the parties might need an attorney to help them put their agreement into writing. Or if a lawsuit has been filed, they probably need attorneys to get the case dismissed. But a mediator is only of assistance when there is a pending dispute.

  • Both sides are able to discuss the matter rationally and emotion is not an issue

Of course, no one is ever completely rational and unemotional when a significant dispute is pending. But in many business disputes, the two parties (and/or their lawyers) can resolve the matter without the need for third-party intervention (such as a mediator).

This is what happened in the situation I described at the start of this post. The parties were perfectly able to negotiate without me, and they did.

  • The matter at stake is not subject to compromise or negotiation (although most disputes do involve issues that can be negotiated)

Sometimes, there is a matter of principle on which one party wants a court to rule, such as the constitutionality of a statute. While mediation might narrow the issues in such a case, it is unlikely to resolve the whole dispute. The parties, even with the aid of a mediator cannot resolve these matters of principle, where the result desired is bigger than the dispute between the specific parties to the case.

Apart from these situations in which mediation is not needed, mediation is also not appropriate when:

  • The parties don’t know enough about the facts yet

Sometimes mediation is attempted too early in a dispute. If both parties don’t know their own facts and evidence, then it is difficult for them to negotiate and reach agreement. But it is a good idea to attempt mediation prior to investing a lot of time and money into discovery of the other side’s position. Good mediators can draw out enough facts from the parties to define the contested issues and enable a reasonable settlement.

I would not rule out early mediation in a case, but I would advise parties to know as much as possible about their own position in the dispute. And I would encourage candor during the mediation itself. Hiding facts and evidence is not likely to improve the chances of a good settlement.

  • The dispute deals with the rights of someone who is not competent to enter into a legal agreement or physically or mentally unable to participate in the process

If one party is a minor or mentally disabled, then that person is not able to participate in negotiations without a legal representative.

Also, mediation can be a long, tedious, and frustrating process. If one party does not have the physical or mental stamina to participate, then either the mediator should make allowances in the timing of mediation sessions or mediation should not occur. It’s important to be upfront with the mediator about the parties’ capacity to participate in the process.

  • There is an overwhelming imbalance between the two sides

If one party holds all the cards in the lawsuit, it might be difficult to reach a fair settlement. A good mediator is skilled at dealing with imbalances of power, but it is possible that one side might feel pressured into accepting a poor settlement.

I am inclined not to forgo mediation when I sense an imbalance of power, but I might well stop the mediation if I sense the process is unfair. I would suggest that the parties get attorneys or family members to assist them, or I would recommend they let the case proceed to litigation. Thankfully, these situations are rare.

When has mediation helped you? When has it not?

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