Advantages and Disadvantages of Mediation

We’ll admit it freely—we strongly believe that mediation is one of the best ways to settle most disagreements. But, like any other dispute resolution process, mediation has some benefits and some potential drawbacks.

^1. Advantages

Especially when compared to litigation as a way to resolve disputes, mediation offers these advantages:

• Speed: Once you and the other party agree to mediate, you can probably get a mediation scheduled within a few weeks. Most mediation sessions last from a couple of hours to a whole day, depending on your dispute. In contrast, lawsuits often take many months or, more typically, years to resolve. In some large cities, it can take two years or longer just to get a court date.

• Confidentiality: Most courtroom proceedings and paperwork are open to the public, but mediation is confidential. Mediation sessions are private—there is no “public record,” as in court—so no one even needs to know that you have a dispute in the first place. What is said during mediation cannot be brought up later in court, and mediation rules often prohibit the mediator or the parties from revealing statements made during a mediation session. (For more on confidentiality in mediation, see Chapter 5, Section A.)

• Low cost: In many parts of the country, nonprofit community media­tion centers handle relatively minor consumer, neighborhood, workplace, and similar disputes either free or for a nominal charge. Private dispute resolution companies, which typically mediate personal injury claims, business, contract, and employment dis­putes, and other cases involving large amounts of money are more expensive (some charge hundreds of dollars an hour), but still far less costly than bringing a lawsuit. Couples who pay divorce media­tors $100 or more an hour often find that they end up spending many thousands (and sometimes tens of thousands) of dollars less than they would have shelled out for a litigated divorce.

• Fairness: In mediation, you tailor your own solution to the dispute according to your needs; legal precedents or the whim of a judge or jury will not dictate the outcome of your case. Best of all, if you don't think a proposed settlement is fair, you don't have to agree to it.

• Flexibility: In mediation, you can raise any dispute-related issues that are important to you. For example, in divorce mediation, a couple may go beyond the strictly legal issues of property division and custody arrangements and reach an agreement on matters that ordinarily wouldn't find their way into a judge's order, such as how each spouse will participate in their children's extracurricular activities or where the family dog will live. Many disputes harbor undiscovered or undisclosed issues, and mediation offers a forum where these matters can surface, be discussed, and become part of the overall resolution.

• Reduced stress: For many people, going to court is scary. You face complicated procedures, a winner-take-all scenario, and the frustra­tion of being dependent on a system whose practitioners speak a foreign language full of terms like motion in limine, order to show cause, and res ipsa loquitur. Mediation, by contrast, is informal, conducted in plain English, and driven in large part by the parties themselves.

• Success: Independent mediators and mediation services report that in more than four out of five cases, the parties are able to settle all disputed issues to their mutual satisfaction. As compared to court, where the losing party is almost always angry, this is success, indeed.

^{2. Disadvanta}g^es

In some situations, mediation has disadvantages that might outweigh these potential benefits:

• No imposed solution: The mediator does not have the authority to decide on a resolution for the parties. Although this can be an advantage in many cases, it might also be a problem. If you are seeking vindication of your rights, nobody will tell the other party that he or she has done wrong.

SOME COURT-ORDERED MEDIATIONS MAY BE COERCIVE

In some court-sponsored mediation programs, particularly for divorcing couples who have children together, judges have the power to order the parties to mediation and, if the case doesn't settle, to ask the mediator to recommend how the case should be decided. This type of mediation presents very different choices for the parties—we discuss them in Chapter 10. The remainder of the book assumes that the mediator follows the traditional role and doesn't have any decision-making power.

• Power imbalance: If the other party has far more power than you— whether financial, intellectual, emotional, or otherwise—you may be at a significant disadvantage in mediation, unless the mediator is willing and able to help you articulate your point of view and carefully evaluate any proposed settlement to be sure it's fair. For example, a person dissatisfied with the purchase of a home com­puter may find himself seated across the table from the computer store's district manager, who not only knows more about computers but is also trained in negotiating techniques. Similarly, a shy college student who works part time and has been sexually harassed by her manager may be at a serious disadvantage mediating with the owner of the company. Power imbalance can also be an important consid­eration in divorce mediation, if one spouse has a history of abuse or intimidation.

DEALING WITH POWER IMBALANCE

Power imbalance occurs when one party in a dispute has a significant advantage over the other in knowledge (financial, legal, or technical, for example), negotiating skills, or emotional strength. Power imbalance is also likely if there has been violence or abuse in the relationship between the parties—domestic violence or severe workplace bullying, for example.

Most mediators are concerned about the issue of power imbalance, but there are different approaches to handling it. Some quickly advise not to attempt mediation with a too-powerful person on the theory that it is like taking a lamb to slaughter (with you as the lamb). Others are a bit more relaxed, saying that fears about lambs being slaughtered are exaggerated and that the presence of an experienced mediator normally offers ample protection for the weaker party. They point out, too, that the alternatives to mediation (doing nothing, direct negotiations, litigation) may create worse problems, for a variety of reasons.

We cautiously favor the latter view and believe that under the right circumstances, you can mediate effectively with just about anyone. You should not agree to mediate if you fear for your safety and the mediator or mediation service cannot adequately address your concerns. However, many mediators will take an active, interventionist approach and do their best to ensure safety and fairness in the process and in the outcome. This is especially common in divorce mediation, discussed in Chapter 10.

Here are some constructive steps you can take to help prevent being overwhelmed by a powerful opponent:

• Prepare in advance by carefully identifying your goals, preparing your presentation strategy, and gathering evidence, as discussed in Chapter 5.

• Bring someone along—a friend, adviser, or lawyer—who can provide moral, practical, or legal support during the course of the session.

• Plan to leave the mediation if you don't like the way it's shaping up. In most cases, mediation is completely voluntary. If you don't like the direction it's taking, you are under no obligation to stay. (However, if you are going to mediation because a state law, court rule, or contract provision requires it, you may need to stay for at least one complete session—probably a couple of hours.)

• Don't sign anything until you've run it by your lawyer or other adviser. (See Chapter 7, Section E, for information on how to set this up in advance.)

• Slippery slope: Some people, including those who are extremely anxious or eager to please, may be a bit too willing to buy into the “compromise” goal of mediation and end up accepting an inappropriate agreement in order to appear cooperative. These folks might benefit from a more structured dispute resolution mechanism.

• Showing your hand: To mediate effectively, you generally need to reveal enough about the strengths of your position to persuade the other side to compromise. You also have to be open to seeing the other person’s point of view, which may involve admitting your responsibility for some aspects of the problem. This is all well and good—unless the case doesn’t settle. If you end up in court, the information you revealed in mediation might help the other side plan a more effective defense.

C.