Mediation is the process through which opposing parties in a legal dispute discuss their points of views and desired outcomes with the help of a neutral third party, the mediator. Mediation may include one session or multiple. It may tackle one issue or many interconnected topics. The mediator will help you and the other party communicate effectively with one another and make sure the conversations remain productive. Mediation can be a quicker and more cost-effective method of handling many legal disputes. However, there are times when it is inappropriate, and you should take your matter to court. There are several factors to consider when determining whether to pursue an outcome through mediation or another avenue.
The type of legal dispute
You may think that whether or not mediation is an appropriate avenue for your dispute depends on your specific legal matter. Some individuals believe mediation is used for certain areas of law or legal disputes and not others. However, this is not true.
“Mediation is useful in all types of cases—ideally to settle a dispute right away, but short of that, to clarify positions and significantly pare down most disputes,” says Mark LeHocky of Mark LeHocky Mediation. “Some disputes are trickier to mediate—particularly those involving allegations of ill intent. However, it’s simply a matter of how the mediation is structured and managed to help everyone thoroughly assess risks, tradeoffs, and alternatives.”
Have you been victimized by the other party?
If the other party in your matter has physically, sexually, or emotionally abused you, then it is almost never appropriate to go through mediation. While this issue is never black and white, going through the mediation process with your abuser could be traumatic. It also is unlikely to be effective if you are not confident in standing up to them. The imbalance of power between you and the abuser may be too great.
Additionally, it is not appropriate to go through mediation with the other individual if you are reasonably concerned for your health and safety.
Do you wish to avoid confrontation?
Mediation requires you to be confident in your legal stance and to portray that confidence in meetings with the other party. If your personality leads you to fear or avoid confrontation, then you may be considered the weaker party in regard to negotiations.
“It may be better for the weaker party to avoid being dominated in a negotiation by allowing to court to make rulings that give the weaker party greater confidence when it comes time to negotiate a settlement,” says Henry G. “Chip” Bachara of Bachara Construction Law Group. Consider if this point applies to you before beginning mediation.
Can you control your emotions?
Negotiating the outcome of a legal matter requires clear communication and remaining calm. If you, the other party, or both cannot control your emotions during difficult conversations, then mediation may not be effective. This includes losing your temper when you are angry or becoming inconsolable.
Are you willing to compromise?
Mediation is a dispute resolution method that requires you and the other party involved in a legal matter to discuss your positions and negotiate an appropriate outcome. Typically, neither party walks out of mediation getting everything they want. Both of you must be willing to compromise.
“Someone who is looking to win at any cost and does not recognize the risk involved is not a likely candidate for mediation,” Bachara says.
Do you wish to set a legal precedent?
If you are invested in clarifying an ambiguous law or addressing a legal issue in the courts for the first time, then mediation may not be right for your dispute. Only a court’s decision can set a legal precedent that will impact future similar disputes.
Are you or the other party unwell?
The mediation process will not be effective or fair if you or the other party are suffering from alcohol or drug abuse, an untreated mental health disorder, or another factor that makes you or the other party mentally incompetent. This type of dispute resolution requires that both parties are mentally fit and able to advocate for themselves.
If you are unsure of whether mediation is the right path for you and your dispute, you can discuss your circumstances and options with a qualified attorney who is experienced with your type of legal dispute.