Arbitration & Mediation - Who Finds It Useful?
Updated: Jun 29, 2021
One of the questions mediators get asked a lot is whether or not mediation is the right process for a client, a divorce or a particular conflict. If you haven’t been to mediation before (and most people haven’t except for lawyers), it sounds a bit scary and pointless. After all of the heartache, anger, grief and general wrongness of everything, now we are going to talk
? Really? Now, what’s going to happen is that I will sit down with the people or the person who has wronged me and find a solution? Not.A.Chance.
Most people feel this way walking into a mediation. They feel very differently when the mediation concludes. How do you know if mediation is the right dispute resolution process for you? Here are a few thoughts. Mediation may be right for:
1. Those who are angry and frustrated by a dispute, but recognize that they need an intervention to move forward.
Of course, a court may be that intervention, but those who may benefit most from a mediation are those that walk into it willing to move off of the traditional positions that they have to take in a court. No one needs to acknowledge weakness or fault in their arguments. Everyone simply has to be motivated to work and find a way to a possible resolution, eve
n for a few hours. If you’re willing to put down the sword for a minute, or at least hear why you might, mediation may work for you.
2. People who are done having the same dispute over and over again.
Where parties have decided that they cannot repeat the dispute to each other again, mediation may offer a road to a different future. Whether the matter is a bitter commercial dispute or an intractable matrimonial mess, people calling to request mediatio
n declare that they cannot have the same fight over and over again. When I ask, how can I help you, they use phrases like, “bogged down,” “stuck,” “we can’t get out of the weeds.” No one is ready to concede important points or positions. However, they are ready to think differently about it because they recognize past methods of communicating about the dispute simply do not work. If every phone call with your soon-to-be ex spouse ends with yelling, dismissal or the traditionally sarcastic, “that went well,” me
diation may be the process for you.
who do not want to spend thousands and thousands of dollars on the fight itself.
To some degree, even before the first call, parties have evaluated the risk of trying to resolve the matter versus the cost of fighting it out further. At least one of them has come to the tentative conclusion that the risk in not trying to resolve the conflict is greater than the risk of continuing the fight in the hopes that the other side capitulates or that a third p
arty (such as a court) will see it differently. Something is keeping them up at night. It could be the cost of litigation. More likely, especially for interpersonal disputes, the anxiety represents the emotional, professional and business cost of a dispute. When a lawye
r or their client sits up in bed and says, “I need to get this off my plate, I gotta’ sleep again,” mediation might be the right venue for you.
4. People who are on equal footing.
This is a critical piece of the,
“is this mediation right for me,” question. If you and the person, business or organization you are in conflict with are more or less standing in the same place of a conflict, albeit on different sides, mediation may be a great opportunity. If everyone is represented by an attorney, this question is easier to answer. If everyone is not represented by an attorney, it is also easier. Power imbalance is the subject of another post or a book -- but for now, think of it this way, can both sides say no? If everyone can walk away from a mediation knowing they have other options (such as court), then everyone is on equal footing.
If you are engaged in a legal conflict and any of the above describes you or how you are feeling, I’d love to connect.