When to Mediate?
Because the process of mediation is flexible and can accommodate a variety of situations, most disputes can be mediated. There are no fixed rules for determining when mediation will work and it is not always possible to know without trying. However, when deciding whether or not to try mediation, consider the following factors:
- First, ask:
- Is there a negotiable issue in dispute?
- Will all parties voluntarily commit to a face-to-face meeting to try to agree?
- Can any party get away with simply ignoring the problem?
- Mediation is attractive if the parties want a private solution.
- Mediation is attractive if the parties want a flexible and informal process or if other options for resolving the conflict are not desirable.
- Mediation is often recommended where both parties have an interest in maintaining their relationship (business or otherwise) after the dispute is resolved.
- It is helpful, but not necessary, for the parties to trust each other. Trust makes mediation easier, but it is not a prerequisite.
- Disputes about tangible issues (such as money, property, behaviour, rights, licenses) are easier to mediate than disputes based on personal values or beliefs.
- It helps if the power balance between the parties is fairly equal. It is essential that one party not be able to dominate another or unilaterally dictate the outcome of a mediation. At the same time, keep in mind that mediators are trained to assess power imbalances and can often intervene to balance inequities. The presence of legal counsel or use of independent legal advisors is one way to establish bargaining equality.
- It helps if each party needs something from the other.
- Mediation often works well for complex cases requiring creative solutions.
As a general rule, the earlier a dispute goes to mediation, the more likely it will settle. The longer a dispute goes on, the more parties tend to become committed to their positions and less willing to consider another point of view.
When not to mediate
Some disputes do not lend themselves to mediation. These include cases in which:
- a legal precedent is needed to govern similar cases in the future;
- an issue of law, public policy or interpretation needs to be clarified on the record;
- public access or participation in the decision or resolution is desirable;
- people who are not parties to the dispute might be prejudiced by the outcome;
- the dispute is over a decision where a statutory decision-maker had no discretion — in other words, there is no negotiable issue;
- the constitutional validity of an act or law is challenged;
- the case is genuinely frivolous or opportunistic;
- a party is acting in bad faith (for example, wants to use the process for delay only or to try to avoid disclosure of relevant information); and
- there is fear of violence between the parties and the mediation would not be safe.
As the mediation proceeds, the mediator will assess the viability of the process and will end the mediation if he or she concludes that it is unfair or prejudicial to any party, or unlikely to resolve within a reasonable time.
