Mediation 301: When to Mediate

After having read Mediation 101 and Mediation 201, you should have a solid understanding of what mediation is and how it works.  Now, let’s discuss when it makes sense to mediate.

While different types of cases get resolved through mediation every day, mediation is not likely to be successful in every case.  As a general rule, when parties agree to mediate, it is implied that they are willing to at least consider some sort of compromise or “outside the box” resolution to the dispute (it is for this reason that I believe court mandated mediation often leads to nothing more than a waste of time and money).  Part of the reason for this is that no matter how reasonable a party’s position may be, mediators are wired to be impartial, and telling one party from the outset that it must capitulate goes against mediator DNA.  Another reason for this is that all but the most inexperienced litigators know that mediation implies some sort of compromise.  Thus, if a party claims at the mediation that it will not compromise one bit, such a position is not likely to be taken seriously – even if it is genuine.  Likewise, a party faced with a situation where both the other side and the mediator are saying that capitulation is the only way to resolve the suit, will likely become more stubborn themselves, as it would appear like the mediator is taking sides unfairly.

While willingness to compromise is very important, do not think for a second that financial compromises are the only ones that will be discussed at a mediation and/or lead to a settlement.  Mediation is a great vehicle by which to reach a “business solution” to a dispute.  One example of this is where the plaintiff agrees to dismiss the lawsuit against the defendant if the defendant will enter into a new contract that either (i) modifies their ongoing business relationship or (ii) constitutes an entirely new deal.  These types of solutions truly are win-win situations, and a smart and creative mediator can be instrumental in helping the parties enter into such a settlement.

Finally, mediation is a potentially great way to get the principals in the same room to resolve a matter.  While we lawyers like to think we are the smartest people in the room, the bottom line is that our clients, the business people, are the ultimate decision-makers.  Further, sometimes all it takes to get a dispute resolved is having those people in the same room, without lawyers, but with a mediator.