Articles by Norman Pickell Mediation: Reluctant to Mediate


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By Norman Pickell Revised August 2006

Mediation is a wonderful way for people to resolve disputes. But before mediation can begin, all parties to the dispute must be willing to participate.

Sometimes one of the parties is hesitant to go to mediation. This article examines some of the reasons why people are reluctant to try mediation and what can be done to overcome that reluctance. Do any of the following statements sound familiar?

   

  I am not sure what mediation is or how it works.

  What are the advantages of mediation for me?
I want to be in control.
What good can a mediator be?
We need to have our dispute resolved quickly.
The other side and I will have contact with each other in the future. Therefore, we need to get this problem straightened out once and for all!
We are "high conflict" parties.
The other side is too miserable and mean.
  The other side is too uncooperative or too unreasonable.
  I don't trust the other side.
  My dispute is not suitable for mediation.
  This case is too complex for mediation.
  We have already tried to settle this dispute.
  We are in the middle of court proceedings now.
  I don't want to compromise.
  If I suggest mediation, won't the other side interpret this as a sign of weakness?
  We have to pay for the mediator.
  How do you find a mediator?
  How do you choose a mediator?
How can I be sure the mediator will not favour the other party?
  The parties cannot communicate well (or at all).
If the other party is in the same room as I am, he/she will just shout at me.
I cannot be in the same room as the other party.
I am not a good negotiator.
Mediation is just "free discovery".
My lawyer says we don't need mediation.
I want my lawyer present.
Mediation does not guarantee success.
What if the mediation process is not working?
I want to have my side of the story heard.
I want a judge or jury to decide.
I am going to court because I know that I am right and I am going to win!
My case involves family violence and abuse.
The conflict will go away.
I had a prior bad experience with mediation.
If mediation fails, we have wasted our time and money.
What are the advantages of mediation for the lawyers?
I just don't want to mediate!

Let us examine each one of these statements:

I am not sure what mediation is or how it works.

Perhaps the biggest reason why people are reluctant to try mediation is because they do not know what it is. Mediation is not therapy or counselling. Mediation is a process by which a neutral person called a mediator helps people in conflict negotiate a mutually acceptable agreement. The parties to the mediation control the outcome. Unlike court or arbitration, no one imposes a solution on a party. If all of the parties do not agree to the result, the dispute remains unresolved. Let me be clear about what I just said - If you do not agree, you are not forced to settle. There are many places where you can obtain more information about mediation, including the following web sites: www.normanpickell.com, www.mediate.com, www.adrr.com and www.lama.on.ca.

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What are the advantages of mediation for me?

The advantages of mediation for you, as one of the parties to the dispute, are numerous. They include:
 
mediation allows the parties themselves to determine the outcome, instead of having it done by a third party such as a judge;
the parties can choose their mediator, whereas they cannot choose their judge in a court case;
sometimes the solution reached in mediation is more creative than what a court can order;
no one, including the mediator, can make you settle; therefore, if you do not like what is being proposed, you can walk away;
mediation is generally cheaper than going to court;
mediation generally resolves the conflict faster than going to court;
mediation is much less adversarial than court;
mediation is less stressful for all of the parties;
mediation is private, whereas court is generally public;
feelings can be expressed and heard in mediation by all parties;
mediation facilitates, promotes and improves communication between parties in those situations where there will have to be future communication between the parties;
family mediation minimizes the harmful effects of separation and divorce on children; children of parents who mediate adjust better to their parents' separation and divorce; the children are happier, more secure, more reassured and less distressed;
usually at the end of the mediation, all parties are satisfied with the result and the process - something that cannot be said by all parties who go to court;
because the settlement that the parties reach is designed by the parties themselves, it is more likely to be carried out and followed without the need for external enforcement or further court proceedings;
if mediation is unable to resolve the dispute, the parties are still able to go to court; that option has not been lost by attempting mediation first.

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I want to be in control.

It is natural that you want to be in control, particularly in an age where people often feel that they are losing control over their lives. Mediation lets you stay in control. In fact, you have far more control in mediation than if you go to court. In court a judge will decide the outcome of your case. In mediation you determine how your dispute will be resolved. The mediator does not tell you how you will settle your case. You pick the time that your mediation sessions take place, whereas in a court case, a judge or a court clerk will tell you when you have to be in court. You choose the mediator, whereas you cannot choose your judge. No one - not even the mediator - can make you settle for something you don't want. You have the ultimate tool - walking away from the mediation at any time - if you don't like what is happening in the mediation process. You can still go to court if you cannot resolve your dispute by mediation. A settlement done through mediation can be better than one that you negotiate with the other party - either directly or with the assistance of lawyers. A mediated settlement can also be more creative than what a judge will order. Unlike court, you do not surrender control over the result to an outsider. You want to be in control? Use mediation!


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What good can a mediator be?

The skills of the mediator are central to the success of the mediation. A properly trained mediator will:

set guidelines for the behaviour of the parties during the mediation sessions;
control the process, but not the outcome;
facilitate the flow of information;
help the parties make decisions;
keep the conversation going and focused;
find ways to level the playing field in cases of power imbalance;
help the parties improve their communication with each other;
help each party to hear and understand what the other party is saying;
explore the individual interests and needs of all of the parties, instead of their positions;
help the parties to think of and consider all of their options;
help the parties defuse anger and strong emotion;
help the parties break any stalemates or impasses that occur; and
act as referee when necessary.

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We need to have our dispute resolved quickly.

Then don't go to court. Mediation is much faster. In some places, it can take months, if not years, to have your case tried in court. You can set the time-table for the mediation sessions, instead of having a judge tell you when you will appear in court. From start to finish, mediation can usually be done in a matter of a few weeks, sometimes just a few days.

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The other side and I will have contact with each other in the future. Therefore, we need to get this problem straightened out once and for all!

Mediation is better for those types of situations where the relationship must outlast the particular matter that is presently causing the conflict. The adversarial nature of court is too divisive. Part of the mediator's job is to help the parties reduce their level of conflict and hostility. Whether you are parents or co-workers or neighbours or business people, mediation will provide you with a set of skills to help you in your future dealings with each other. If some form of future cooperation is required, mediate, don't litigate!

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We are "high conflict" parties.

Mediation is not limited to those situations where all parties are reasonable, calm and rational. A properly trained mediator will usually be able to handle even the most difficult parties. Of course, there will always be the impossible party. But let your mediator first try some intervention techniques before you throw out the idea of mediation. Don't be afraid to ask your mediator about his/her experience with and training in high conflict mediation.

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The other side is too miserable and mean.

Mediation is not limited to those situations where all parties are reasonable, rational and trustworthy. Parties who go to mediation are not any nicer than the ones who go to court. The difference is the process. Mediation is a positive environment in which all of the parties find practical solutions that work for them.

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The other side is too uncooperative or too unreasonable.

The mediator can contact the other side for you. Let the mediator try to persuade the other party to come to mediation. One of the functions of the mediator is to encourage all parties to be more cooperative and more reasonable. Mediation can be effective even when conflict and anger is high.

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I don't trust the other side.

You don't have to trust the other side for mediation to work. Once an agreement is reached between the parties and is reduced to writing, it is binding and enforceable. But often the mediation process creates an environment whereby the parties do develop a trust for each other.

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My dispute is not suitable for mediation.

Most disputes are suitable for mediation. However, mediation may not be appropriate for some disputes. Some of the reasons for this are:

there may be a power imbalance for which the mediator cannot compensate;
there may be abuse issues for which the mediator cannot compensate;
there may be a need for a legal precedent;
one party may be acting in bad faith.

If you think that your conflict is not suitable, discuss it with a qualified mediator first before closing the door on mediation.

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This case is too complex for mediation.

Mediation works well in complex cases because you can negotiate each item separately or as part of a whole package. In the event that you are unable to resolve all of the issues by mediation, you may at least be able to simplify the case so that it is less costly to have a trial.

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We have already tried to settle this dispute.

A mediator can look at what is preventing the parties from reaching a settlement and use his or her mediation skills to try to break the impasse. As a neutral person without any vested interest in the outcome, the mediator is able to help the parties brainstorm to find a mutually agreeable solution to the conflict. Lawyers, on the other hand, are in an adversarial mode and are usually concentrating on what his or her client wants or what is best for that client.

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We are in the middle of court proceedings now.

Mediation can be done at any stage of the conflict. It is never too late. Obviously the sooner that mediation is tried, the better it is from the standpoint of the cost of going to court. However, mediation can even be done a few days before the trial is to begin. At trial there will be a winner and a loser - and possibly an appeal to a higher court. But in mediation, everyone wins because both sides must be in agreement with the outcome. No result is imposed by the mediator on a disagreeing party. And there will not be any appeals!

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I don't want to compromise.

Mediation does not always mean that you have to compromise. With the assistance of the mediator, you may be able to come up with new ideas and reach a settlement in which all parties are very satisfied with the outcome.

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If I suggest mediation, won't the other side interpret this as a sign of weakness?

Suggesting mediation is not a sign of weakness. Today, with mandatory mediation legislation in effect in several jurisdictions, the recognition of successes in mediation and cost-conscious parties, suggesting mediation is being seen as a sign of a willingness to be realistic.

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We have to pay for the Mediator.

Yes, the parties do have to pay for the mediator, whereas a judge in court is free. For this reason court is often perceived as being less expensive than mediation. However, even when you add in the cost of the mediator, mediation is generally cheaper for the parties than going to court. The parties miss less time from work in the mediation process than they do in a court action. The legal costs associated with mediation are usually lower than they are for court. In mediation you do not have all of the out-of-pocket expenses, including witness fees and court filing fees, that you have with court.

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How do you find a mediator?

To find a mediator, you have several options:

contact one of the mediation organizations to which mediators belong. For a listing of some of these organizations (including their web site addresses), please visit the "Mediation Organizations" section of www.normanpickell.com;
visit the "How to Find a Mediator" section of www.normanpickell.com;
ask your lawyer;
ask your friends;
check the internet;
check the yellow pages.

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How do you choose a mediator?

Even in those jurisdictions where mediation is mandatory, the parties are still free to choose their own mediator. Once you have the names of some mediators, you need to select one who is acceptable to all of the parties. There are many considerations when selecting a mediator. Begin by examining the training and other qualifications of the mediator you are considering. Ask for and look at her or his Resumé. The skills of the mediator are central to the success of the mediation. Remember that the mediator is neutral and does not decide your case. Therefore, do not reject a mediator simply because the other side suggests that person. In the sub-section entitled "Articles to Assist You in Choosing a Mediator" in the "How to Find a Mediator" section of www.normanpickell.com, you will find several excellent articles that will help you choose a mediator.

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How can I be sure the mediator will not favour the other party?

Regardless of who suggests or pays for the mediator, the mediator will not take sides. The mediator is neutral. If you think that the mediator is favouring the other party, you can decide to use a different mediator. Remember, if you don't like the way that the mediation is going, your ultimate tool is to withdraw from the mediation process. A good mediator knows that you can do that and therefore will act accordingly.

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The Parties cannot communicate well (or at all).

Conflict prevents - or destroys - effective communication. One of the tasks of the mediator is to help the parties improve their communication so that the parties can begin the process of talking constructively about the issues in dispute. A skilled mediator is trained to keep conversations going and focused.

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If the other Party is in the same room as I am, he/she will just shout at me.

Part of the mediator's job is to make both parties feel safe and comfortable in each other's presence. While the mediator will usually allow each party to do some venting, the mediator will not permit any party to shout or otherwise verbally abuse another party. Sometimes the parties will be kept in separate rooms and the mediator will shuttle back and forth.

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I cannot be in the same room as the other party.

In a private (caucus) session, tell the mediator that you cannot be in the same room as the other party and why. Mediation is a flexible process. In some mediations, the mediator shuttles back and forth between the separate rooms of the parties so that the parties do not see each other. This is particularly true if there has been a high degree of abuse in the parties' relationship.

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I am not a good negotiator.

Some people feel that they cannot stand up for themselves and that others will take advantage of them. This is where a good mediator helps to level the playing field. While the mediator must remain neutral, the mediator will not allow one party to take unfair advantage of another party. There are many techniques that a skilled mediator uses to level the playing field. But if the mediator does not feel that he/she can properly level the playing field even with these techniques, the mediator will bring the mediation to a halt.

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Mediation is just "free discovery".

It is true that all parties will learn more about each other's case in mediation. Usually the mediator will want the parties to give full document disclosure to each other before the mediation sessions begin. But this is not any different than the rules that exist in most jurisdictions for document disclosure in court cases. With present-day court rules for disclosure, the facts will come out at some point. The sooner that the facts are learned by all of the parties, the sooner your dispute will likely be resolved.

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My lawyer says we don't need mediation.

Why is your lawyer saying that you don't need mediation ? Your lawyer may have valid reasons. On the other hand, maybe your lawyer is not very familiar with the mediation process. In how many mediations has your lawyer been involved ? Perhaps the lawyers for the parties need to have a joint meeting with the mediator to see if the dispute is suitable for mediation. Ultimately it is the client - and not the lawyer - who has the final say as to what process is used to resolve the dispute. If you suspect that your willingness to mediate is not being communicated to the other party, consider contacting the other party directly. (Your lawyer cannot do this, but you can.)

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I want my lawyer present.

Mediation does not exclude lawyers. In some types of mediation, lawyers are present at all of the mediation sessions. In other types of mediation, lawyers attend sessions only when requested by the parties. Even when lawyers do not attend any of the mediation sessions, lawyers often still advise their clients on their legal rights and obligations. Mediation changes the role of lawyers from adversarial negotiators and advocates to legal advisers.

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Mediation does not guarantee success.

This is true. Likewise, when a case does go to trial, the outcome is not guaranteed. Unlike television, no one writes the script ahead of time for what will actually happen in the real courtroom. The courtroom is a very unpredictable place. But statistics indicate that over 80 % of all mediations result in a settlement.

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What if the mediation process is not working?

Either party can withdraw from mediation at any time. Just because one party agrees to try mediation does not mean that the process needs to continue until a settlement has been reached. If, at any time, one of the parties believes that the mediation process is not working for her/him, that party should communicate that belief to the mediator and bring the mediation to a halt.

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I want to have my side of the story heard.

One of the reasons that people want to go to court is so that they can tell their side of the story. However, when one side is telling his or her story in a court room, often it is only the judge, and not the other side, who is listening. In mediation, all parties still tell their story. But the mediator tries to make sure that the other side is listening and understanding, even if that person does not agree with what is being said.

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I want a judge or jury to decide.

For a variety of reasons, some people want their day in court. However, what many people do not realize is that the vast majority of cases which start out going to court settle without having a trial and without a judge making a decision. The parties may settle after a pre-trial settlement conference. They may settle on the doorsteps of the court house on the morning of the trial. They may even settle mid way through the trial. It is only a very small percentage of cases that actually receive a full hearing and decision by a judge or jury.

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I am going to court because I know that I am right and I am going to win!

When a case does go to trial, the outcome is not guaranteed. Unlike television, no one writes the script ahead of time for what will actually happen in the real courtroom. The courtroom is a very unpredictable place. And trials are expensive, both monetarily and emotionally!

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My case involves family violence and abuse.

One of the parties may have been physically and/or emotionally abused by the other party. This may include one party being very controlling of the other party. The mediator needs to be made aware of these facts. In such cases, a properly trained mediator will screen the parties before commencing mediation to see if the process is suitable. If there has been abuse, the mediator will do one of two things:

refuse to mediate; or
modify the mediation process to make it safe and fair for the abused or weaker party.

If you find yourself in this situation, don't be afraid to ask the mediator how the process can be made safe and fair for you. While a mediator's training and background is always important, it plays an even higher role in situations where there has been violence or abuse. Ask your prospective mediator about her or his qualifications in this area.

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The conflict will go away.

How many times have we heard people say that the conflict will "just go away." In reality, ignoring it usually causes the conflict to grow with the result that the destructive effects increase.

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I had a prior bad experience with mediation

Mediation is not always successful. Statistics indicate that over 80 % of all mediations result in settlement. Perhaps your earlier experience was in that less than 20 % category. That should not stop you from trying again. Each case is different. Maybe the reason for the prior bad experience was the fault of the mediator. Are all teachers, farmers, doctors, nurses, auto repair technicians, secretaries, computer programmers and lawyers equal in their skills ? Of course not. The same is true for mediators. You need to look at the qualifications of your mediator.

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If mediation fails, we have wasted our time and money.

Even though mediation might not result in a settlement, that should not stop you from trying mediation. As I have already stated, the chances are very high that mediation will produce a settlement. But even where a settlement is not reached, the parties are often better able to focus on the real issues after attempting mediation. This reduces the length and costs of a trial.

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What are the advantages of mediation for the lawyers?

Just as there are advantages of mediation for the parties, mediation also has its advantages for the lawyers involved. These advantages include:

mediation is less stressful for lawyers;
lawyers will have clients who are generally more satisfied by the mediation process than the court experience;
a satisfied client is more appreciative of the lawyer's services and spreads the good word about that lawyer;
more clients will seek out that lawyer for similar satisfactory results;
the mediator can assist lawyers with difficult clients to see the reality of their case;
lawyers representing clients in mediation are more likely to be paid their full fee, whereas lawyers who go to court often do not bill the client the full fee, or they sometimes have trouble collecting their full fees from their clients.

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I just don't want to mediate!

Why not ? What do you have to lose ? If your concerns about the mediation process are not addressed in the answers to the concerns above, why not phone or meet with a mediator and discuss the process, including the advantages and risks, with him or her. Many mediators will do this without charge.

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In the last century, people with a dispute automatically thought of going to court. In this century, more and more people are turning to mediation to resolve their differences. Instead of asking "Why should I mediate?", ask yourself "What do I have to lose by mediating?"


Norman Pickell is a mediator and lawyer based in Goderich, Ontario, Canada. He can be reached through his web site www.normanpickell.com.


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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530