We often hear how successful the mediation process can be. It is seen as a “win-win” for both sides. But how do we get people to take the first step? That is, how do we get people to agree to mediate?
No one can be forced to attend a mediation session after all. Mediation is completely voluntary. In other words, both sides have to want to be there. So, how do we get someone to show up in the first place?
Why is Mediation Good for Both Parties?
In many instances, those seeking mediation services, have enjoyed a functioning relationship in past. They’re neighbors, business partners, employers and employees, vendors and/or customers. There exists an immediate incentive to revive that relationship and come to the mediation table to find a solution to the problem. It’s often the case where something happened to this relationship—one party is thought to be wronged by the other in some way—and now the two sides won’t speak to each other.
The spark of hope here lies in the underlying relationship and the anticipation that, once the alleged wrong is righted, things can go back to something close to what they were before.
What Types of Cases Aren’t Good for Mediation?
While mediation should be encouraged in many situations, there are a few types of cases that don’t lend themselves to mediation. These include cases that involve certain aspects of domestic violence, cases against large corporations, or those in which there are major power dynamics between the parties and differences in the information possessed by each side.
Litigation is always available and may be necessary when there is a situation where one side has information that’s needed to resolve the dispute but is unwilling to offer it without formal discovery (the court-ordered investigation process in a lawsuit). Mediation is based on the premise that there will be complete and voluntary disclosure between the parties.
What Stops People From Mediating?
Again, there may be hard feelings because of a perceived slight, a misunderstanding, an error—something has caused the two sides to stop trusting each other. That means they frequently have also stopped listening. And listening is a big part of mediation. In order for mediation to work, each side has to be willing to truly listen. They do not have to agree but they do need to hear and acknowledge the other side’s point of view. For example, once at the table, a mediator can ask a side to describe their concerns and what might be done to address or rectify the issue. The mediator will also ask the same of the other side. Each side will be given the opportunity to tell their story and hearing it may be quite a challenge for the other party.
Another challenge may be, that people think they will achieve better or quicker results if they choose another route. Parties often ask, “If we don’t participate in mediation, how can these issues even get resolved?”
The reality is that while there are alternatives to mediation, namely binding arbitration or litigation, these are not faster or better processes. For one, mediation is less intimidating than preparing for depositions and a trial. The process is more fluid, and there are no strict rules of judicial procedure. A big reason for mediation is a faster resolution. The courts can take years to even hear a case while a mediated agreement may be fashioned in just a few hours. Another big benefit is that mediation is less expensive than trial. Litigation is time-consuming and costly, which costs may exceed the benefits.
Plus, the entire process is private. The parties can resolve all issues completely outside the eyes of the court, away from the press, or even neighbors. Court is an open forum where nearly anyone can learn what is going on. Mediation ensures confidentiality, without anyone knowing the intimate details of the settlement.
In addition, a mediator and the participants can explore issues and gather information that may not be legally relevant (or admissible in court), which can play a significant part in one side’s position or way of thinking. A party who has been slighted may want an apology, and that simple gesture might go a long way to resolving the issue. Mediation is a way to deescalate a dispute and engage in a constructive discussion.
Can a Mediator Force a Person or Business to Mediate?
As a general rule, a mediator won’t make contact with a party on behalf of the other party to request that they mediate. That’s because the mediator is an impartial third-party, sometimes termed “omnipartial”—a person who’s on the side of all the parties. If a mediator reaches out to one side to encourage them to attend mediation, he or she may not be trusted or seen as that impartial third-party. While a mediator may send some general information to both parties, any personal invitation by the mediator can have negative ramifications if and when a mediation takes place in the future.
Note, however, that a mediation company may contact a party to make them aware that they’ve been invited to mediation and to give them a choice of mediators. The company or organization can’t provide any insight or recommendation to the invited party about the merits of the case or alternatives to mediation.
What if the Other Side Won’t Sit Down at the Same Table?
It’s important to understand that mediation doesn’t actually mean sitting in the same room across the table looking at the other side. The sides do not have to physically meet to conduct and participate in a mediation session. Sessions may be virtual or may be in person, without the parties sitting in the same room.
A mediator can move (shuttle) between two separate rooms to facilitate an agreement, if the parties agree to this style of sessions. This may alleviate some of the discomfort or apprehension a person may have with the mediation process. Keep in mind however that in order for mediation to be successful, each side must be in agreement as to participating in the process itself and as to the terms of how each session will move forward. If both parties are in agreement to use mediation, the finer details can be modified throughout the process.
Attorneys are Key Players in the Mediation Process
Attorneys can be critical in getting the two sides to the table initially. An experienced attorney can determine the merits of the case and examine the risks and benefits of taking the matter to court.
Plus, an attorney can counsel a party as to what actions should be taken before mediating, such as mitigating the damages (or perhaps stop doing what they’re doing to make the other side angry until the issue is settled). Receiving the input of a seasoned attorney, prior to mediation sessions beginning and even throughout the process, can prove to be an invaluable tool in one’s toolkit.
Contact the Mediation Team at LOVE LAW FIRM
New York small business attorney Francine E. Love, Founder and Managing Attorney at LOVE LAW FIRM, PLLC, has a seasoned mediator on her team. LOVE LAW FIRM can assist parties with mediation and resolving issues in a fast and less expensive manner than a lawsuit.
Contact Francine at (516) 697-4828 in Uniondale, NY to learn more about the mediation process and how LOVE LAW FIRM may be able to help you resolve your problem.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice. To learn more about LOVE LAW FIRM please see our website, www.lovelawfirmpllc.com.