Ensure the Parties are Open to Negotiate or Mediate the Dispute

Not all matters will be appropriate for mediation.

There are situations in which mediation is likely to fail:

1. When parties let their egos control.
2. When there is a misunderstanding of the facts.
3. When there is a misunderstanding of the law.
4. There is no incentive for settlement.
5. When parties do not respect the process.

Before mediation should be considered, parties need to have an objective understanding of the law and facts involved in the matter and the parties need to be ready to agree to mediate the dispute in good faith.

As an attorney or mediator, you need to understand the motivations and true incentives of the client and the opposing party. Before considering mediation you need to ask yourself: are the parties truly committed to resolving their dispute? If not, mediation may not be the right choice for the matter at this time. 

Oftentimes, especially in employment cases, financial compensation is not the only factor driving the litigation. Parties often are emotionally invested in the situation. If parties are too emotionally attached to the issue and take a principled stand, they may not be ready or prepared to genuinely seek resolution. If an attorney or mediator attempts to seek resolution before the party is ready it may do more harm than good.

For example, as a mediator I have experienced several situations where a party was not aware of the mediation process and its purpose and insisted they were not willing to concede on any point. In another situation, a party was completely unprepared and could not respond to the facts presented by the other party.

However, if the matter and the parties are appropriate for mediation then mediation can be a great solution. Mediation has many benefits over traditional litigation including:

1. Engaging in mediation can resolve matters faster than waiting for a trial;
2. A successful resolution in mediation can allow parties to avoid the costs of discovery and litigation;
3. Mediation provides a unique forum, which provides an opportunity for creative resolutions that a court or jury may not typically consider, where the parties can control the outcome;
4. All information about the dispute, including settlement agreements, are subject to strict confidentiality provisions;
5. Mediation has a higher likelihood of obtaining mutually agreeable resolutions; and
6. If performed correctly, mediation can preserve business relationships and increase the likelihood of reaching mutually agreeable resolutions.

Approaching mediation can be a rewarding process. It may be in the client’s best interest to settle because only 3% of cases actually get resolved at trial. Mediation can allow the parties to move on with their lives and businesses instead of spending 2 years in prolonged and expensive litigation. There is a saying, “Everyone is brave a year before trial.”  It is best to settle early than on the courthouse steps.