Mediate, Don’t Litigate?

Mediation is not a magic bullet.However, it yields voluntary agreement more times than not, when facilitated by a skilled practitioner in an appropriate setting. The hardest part of mediation is getting people to the table, as any mediator or mediation organization will attest. Why the resistance?

Ambiguity/Uncertainty: Mediation is a relatively new method in the US, recently required by some courts as a way to resolve disputes. Because it is unfamiliar to many, it may not be trusted as a means of resolution. The Equal Employment Opportunity Commission, one of the federal agencies that enforces employment laws, states that, “Although participants almost uniformly view the EEOC’s mediation program favorably, the percentage of employers agreeing to mediate is considerably less than the percentage of charging parties agreeing to mediate.” EEOC FY 2006 Performance and Accountability Report

After experiencing mediation the perception seems to improve, “Participant confidence in our (mediation) program remains high, with our FY 2006 figures reflecting that 96.8% of all participants would return to EEOC’s Mediation Program in the future.” Promotion and Expansion of Mediation

Negative Energy: When there is tremendous anger, the threat of litigation may pack a punch or gain a reaction from the opponent.

Feels Dismissive: Mediation may seem like a light treatment to a grievance offense.

Broken Trust: Opponents may resist mediation because they know their opponent well and understand that the other’s words are cheap; lacking confidence that even if agreement is reached, the opponent will not honor the agreement.

Punishment: Litigation is sometimes preferred in order to punish the opponent through delays and continuations, exhaustion of resources (financial and emotional), withholding information of requests for discovery and documentation, and the hope of manipulating the court even if the other party has a valid point.

Avoidance/Denial: Respondent doesn’t have a problem with the way things are, and discounts any effort to enlighten themselves with the perspectives of the other.

Sometimes mediation is the only means of reaching a satisfactory result. When the relationship is valued and needs to be preserved (employment, domestic relations, community disputes, business partnerships), seeking to understand and address the needs of all parties is the only prudent choice.

Litigation certainly tends to propel parties away from each other, where they become more positional and entrenched. After battling in court, a tranquil relationship going forward is improbable. In stark contrast, mediation tends to shed light into the dark corners of misunderstanding; promoting the ability to work on common issues in the future and enhancing good will. Mediation often generates significant organizational change - the process initially gained a foothold in American organizational behavior as a response to critiques that the legal system caused costly delays and damaged relationships. Mediation and Multicultural Reality by Michelle LeBaron

Certain complex family matters involving parenting of children or addressing the needs of a disabled family member are best suited for mediation, due to the need for an ongoing, deep level of understanding and cooperation. Courts rely upon professionals to provide recommendations in these circumstances. Colorado recently passed directives identifying family roles such as Child Family Investigator, Mediator, Parenting Coordinator, Decision Maker, and Arbitrator.

Sometimes there is good reason not to mediate. In severe imbalances of power, such as domestic violence cases or various types of tyranny, the imbalance of power prevents good faith bargaining. Abuse can occur in the presence of others completely undetected by anyone but the victim and perpetrator. Shuttle mediation and caucusing are sometimes used, which begs the question of whether it is possible to expect parties to bargain in good faith under such conditions.

Waiving of legal rights during mediation is always a concern when people enter into an agreement without legal counsel. A legal review provision should always be part of any agreement that is reached when parties are Pro Se (attend mediation without an attorney).

Determination of a party to conceal, manipulate, or misrepresent the situation in order to “win” is clear indication that legal representation is necessary, and litigation may be the only means of obtaining justice.

While there is tremendous potential benefits with mediation, we should never take for granted the benefits that only the judicial system offers – protections of legal rights - and justice for all.