In a perfect world there would be no disputes, and everyone would just get along. The second best option is a world where all disputes would be settled by the mediation process. The good news is that mediation works in most cases. There are just a few situations where when mediation will not be an appropriate method to settle a conflict.
When Is Mediation Not Going To Work?
Mediation will not work if one or more parties refuses to participate in good faith. Mediation needs to be entered into voluntarily by all parties for it to be successful. You can’t make a rock talk. That being said, mediation can be successful where a party is reluctant, but open minded. The “magic” of mediation is the atmosphere it creates that encourages people to think about their situation in a different light and try to resolve the dispute.
Parties must be willing to participate fully and be vulnerable. If one party senses that the other side is holding out or holding back, that would hinder the process. Transparency is key.
Every once and a while, a party only seeks mediation for bad faith reasons, such as to garner information to use against the other side. The mediator will stop the mediation if she senses bad faith intent.
If there is a large power imbalance, mediation may not work. If one of the parties interprets that there may be a power imbalance, they may opt to litigate rather than mediate. Human nature would say that people don’t like to feel dominated and will typically avoid being dominated. Power imbalances can be caused by a history of domestic violence. It can also be caused when there is a difference in status between the parties (a company president, for example, in a room with an employee). Power imbalances are mitigated when attorneys are involved. Further, the mediator can take such steps as placing parties in separate rooms during negotiations to mitigate the imbalance. The role of the mediator in general gives both sides a sense of equality in the process.
If you want to know if mediation is right for you in the Metro Phoenix area call Alona M. Gottfried at 480-998-1500 or Contact Us.
This article is not intended to be legal advice. Consult your legal professional before making legal decisions.
Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260
