When Is Mediation Not a Good Idea?
Mediation can be a cost-effective and efficient way to resolve disputes since it allows people to come up with creative solutions that may not be possible in a courtroom. However, mediation might not be the best option if the parties are unwilling to participate in good faith or if one party has significantly more power or resources than the other. Here, we’ll discuss what mediation is, its benefits, and when it might not be the best way to resolve a dispute.
What Is Mediation?
Mediation is a negotiation process that is voluntarily entered into by the parties or required through court orders or contracts. The purpose of mediation is to induce an informal and nonconfrontational conversation between parties that is monitored and guided by a third party. This will influence individuals to reach a mutually agreed resolution.
Who Can Be a Mediator?
A mediator is typically an attorney who is an impartial, neutral, and state-certified third party who will act as a neutral facilitator. During the mediation, the mediator will assess the evidence, advise on relevant laws and regulations, and guide the party’s conversations to keep them focused and working towards a settlement.
Benefits of Mediation
Mediation is more likely to be successful when both parties try to reach a mutual resolution, meaning they are willing to compromise to reach an agreement. In addition, courts, defendants, and even plaintiffs tend to like mediation because of the following benefits:
- Confidential conversations – Mediation encourages informal, nonconfrontational discussions, which are more likely to result if conversations are confidential. This is because the parties are more willing to discuss the strengths and weaknesses of their case openly with the opposing side when the information cannot be used against them unless the communications fall within one of the limited exceptions.
- Inexpensive compared to a trial – Trials can be costly, and while mediators charge a fee, it is inconsequential compared to the cost of a trial. Therefore, when parties go to mediation through mutual agreement, the mediator and the parties will enter an agreement to set the fee for mediation, either hourly or flat rate.
- Can be resolved faster than going to trial – The trial process (i.e., preparing for trial and participating in a trial) can take months, if not years, to resolve. In contrast, mediation may resolve a case in one or two mediation sessions, which only last a few hours each.
When You Should Avoid Mediation?
While there are benefits that make mediation appealing, that does not mean mediation is the right answer for all cases. Mediation requires parties willing to work together towards a resolution, meaning if any of the following apply, then mediation is likely to be unsuccessful.
- Malicious intent – When a case results from a party’s malicious intent, mediation will likely be contentious because of the emotion because the incident occurred due to someone’s intent. For example, suppose someone has road rage and runs someone off the road. In that case, mediation is unlikely to be successful because emotions are running high on both sides, likely resulting in arguing rather than an informal nonconfrontational conversation focused on resolution.
- Bad faith – If it is suspected that a party is acting in bad faith, mediation is not a good idea because it will likely fail. For example, mediation will be unsuccessful if a party wants to know more about the other side’s case. This is because the party is not entering mediation to resolve the matter but is participating under pretenses to gain insight and potential benefit over the opposing party.
- Inability to communicate – Similar to cases involving malicious intent, if there is too much bitterness between two parties or another failure to communicate, it is improbable that you will reach a mutual resolution. For example, even if the case was not a result of malicious intent, but the parties cannot agree on terms for other reasons, mediation is unlikely to be successful because the discussion will be confrontational rather than working towards a common goal – settlement.
Contact Us Today
The West Palm Beach personal injury attorneys of Schuler, Weisser, Zoeller, Overbeck & Baxter P.A. are here to help you if you’ve been injured in an accident. While mediation can sometimes resolve these cases, there are instances where litigation will be the best way to recover what you’re owed. If you have an injury claim, we will review your case and help you understand your legal options. Contact us today at 561.689.8180 or online for a free consultation.