Perhaps the most basic question someone has to answer when deciding whether to propose or agree to mediation is simply, “Why mediate?” This is also a very important question: Unless the parties have resolved this question for themselves, there will continue to be uncertainty about the process, uncertainty about value of the outcome, and a lack of commitment to the process. You may not be 100% convinced, but at least you understand the pros and cons enough to give the mediation process a chance to succeed. In deciding whether not not mediation is your next step, here are some considerations:
- Do you need outside help? If you are considering seeking mediation, chances are you have a situation that you have not been able to resolve on your own. This, therefore, is the first reason to consider mediation. You should also consider your alternatives, which include not resolving the issue, hiring an attorney, and perhaps filing a lawsuit or small claims action. Depending on the nature of the issue, there may be other alternatives to consider. You will note that of the options I listed, most include obtaining some outside help.
- Cost. While some mediation venues are free, most mediators need to eat, too, so they charge an hourly fee. The general cost of a mediator is often cheaper than hiring an attorney, especially if you split the cost with the other party, especially because the entire process of mediation is focused on resolving the issue. There are some neighborhood mediation programs that provide free mediations, as do many Small Claims courts (after you file your action). You might feel that having legal assistance is worth the cost, even if you purpose to mediate the issue at some point. Try to think down the road of each of your list of options, and try to estimate a ballpark cost for each one. Also consider back-up plans, if your first option isn’t successful.
- Time. Many court systems are quite backlogged. Even filing for arbitration can mean 6 to 9 months before you see resolution (not to mention the added costs). Mediations can be scheduled fairly quickly, often within days, and the parties control the timing of the process.
- Control. One of the main advantages of mediation is that unlike a court or arbitration process, the parties maintain control of the process. The mediator works for you, not the other way around. You decide what issues to address, and you have control over whether or not the issue is resolved. If you are not pleased with the direction the mediation is going, you can call it off.
- Relationships. Mediation has the potential to preserve, or even enhance, the relationship between the parties, because the process is collaborative (focused on working together) rather than confrontational (working against each other). One goal of mediation is to give the parties a better understanding of each other, which often will result in less problems in the future, if the relationship is ongoing.
- Confidentiality. A court proceeding becomes public knowledge. A mediation is as confidential as the parties wish, and often confidential information can be shared with the mediator without divulging it to the other party. This can assist the mediator in finding ways to reach an agreement and protect the parties privacy.
To keep things honest, I must concede that there are some factors that might cause you to choose an option other than mediation:
- The Process is Voluntary. The mediator cannot (in a true mediation) shove a settlement or agreement down anyone’s throat, and a good mediator will not tell the parties who is right or what the “right” solution is. Resolution is up to the parties. It is possible that no agreement will result, if the parties cannot or will not come to an agreement.
- Enforcement. Essentially, there is none. The mediator has no authority to enforce an agreement. Generally a memo summarizing the agreement will be drawn up, and perhaps an actual signed agreement will result. However, enforcing an agreement might mean going to court.
- No Legal Decision will Result. If you need a court ruling on an issue, you won’t get this in mediation. On the other hand, you don’t run a risk of getting a contrary ruling, which is always a possibility.
- Waste. If you or the other party is not ready to address the issues, you may waste your time and money. However, if someone is going to make the investment of time and money, they are usually willing to put some effort into moving the process forward.
Make A List
If you have a situation serious enough to consider investing the time and money to try to resolve it, make a list of your options, and list the pros and cons of each. You might call an attorney for advice, although keep in mind that attorneys also want your business. If an attorney proposes you retain him to take a certain course of action, ask him for a proposal and budget. If you talk to a mediator and he tries to talk you into mediation, ask him for a budget as well. Mediation might be a good first step, but be aware of your options.
