Factors Opposing Mediation

If any of the following statements are true, mediation may not be the best choice for resolving your dispute.

1. You Want to Vindicate Your Rights or Set a Legal Precedent

If you are part of an advocacy group—one that promotes environmental, women’s, or immigrants’ causes, for example—it may be important to your group to set a legal precedent by winning an important court case that interprets or defines the law in a particular way.

If there is a bad law that you want overturned, or if you want to prove the truth of something publicly—for example, if you have been unfairly maligned in the local newspaper and want to clear your name—you may sensibly choose to do this through the courts rather than in mediation.

2. You Want to Go for the Jackpot

If you believe you can win a million-dollar verdict against a big company (or even a small company with a big bank account or plenty of insurance), you might want to opt for a jury trial rather than mediation. In mediation, chances are good you would achieve a settlement more quickly and therefore get your money sooner than you would by filing a lawsuit. However, because mediation usually results in compromise, you would be less likely to get big money. This is especially true if there’s a good chance that a jury might award you punitive damages (see “What Are Punitive Damages?” below) or a significant amount of money for pain and suffer­ing. Of course, it’s also true that you could lose in court and recover nothing.

WHAT ARE PUNITIVE DAMAGES?

Sometimes, a judge or jury awards “punitive damages.” This is payment over and above the value of the person's actual losses or injuries, and even beyond compensation for “pain and suffering,” “emotional dis­tress,” and other types of trauma that are difficult to measure. The purpose of punitive damages is to punish the defendant and to deter him and others from committing similar acts in the future. Punitive damages may be awarded when the defendant acted maliciously, recklessly, or deliberately, or intentionally disregarded the rights of others. In most states, punitive damages can be awarded in cases involving personal injuries, damage to property, false arrest or imprison­ment, fraud and deceit, interference with employment or business relations, libel and slander, nuisances, and interference with rights guaranteed by the Constitution. Punitive damages are generally not awarded in divorces or cases involving breach of a contract.

3. One Party Refuses to Mediate, or Is Absent or Incompetent

What is the sound of one party mediating? Nothing, of course, which pretty much sums up what happens when only one party agrees to try mediation. For any one of several reasons, the other side may:

• prefer litigation because he thinks he has a good chance to win in court

• not perceive enough of an advantage in mediation to consider trying it

• enjoy the dispute—or the prospect of beating you in court—so much that he’s in no hurry to end it, or

• dislike or fear you so much that he doesn’t want to be in the same room with you.

A significant percentage of cases referred to mediation never reach the table because one party declines to participate. You’ll find some strategies to overcome a party’s reluctance to mediate in Chapter 4. Often, a media­tion service will actively work to bring the reluctant party into mediation. But if the other side keeps refusing to participate, there is little you can do about it.

Similarly, if one or more parties is physically unable to attend, then mediation may not work. For example, if a party is in jail for an extended period, then you cannot mediate. However, physical proximity isn’t always required for successful mediation. Even parties who live in different cities or states can mediate a dispute through teleconferencing or the Internet.

Mediation requires both parties to be rational and able to participate in reasoned discussion and negotiation. If one party is mentally impaired or affected by alcohol or drug abuse, mediation won’t work. A physical impairment such as a speech problem or an inability to speak English should normally be no bar to mediation—you can arrange for an inter­preter or spokesperson to bridge the communication gap.

4. The Dispute Involves a Serious Crime

Cases involving spousal or child abuse or other serious criminal behav­ior, including murder, rape, and armed robbery, do not belong in mediation. By law, crimes must be prosecuted by the authorities. But even beyond that, mediation requires that both parties be able to engage in rational and effective negotiation; if one party has been the victim of serious criminal behavior, that party may be too intimidated or fearful of reprisals to participate freely.

On the other hand, minor criminal cases—for example, assault with no injury, personal harassment as might occur among neighbors or coworkers, and minor property damage—are often good candidates for mediation. The process allows parties to get at underlying attitudes and behaviors with the idea of heading off repeat problems. In many areas, these types of cases—which are often referred to mediation by prosecutors or judges—make up a significant part of the caseload at community mediation centers.

5. You Need a Court Order to Prevent Immediate Harm

Your dispute won’t be a good candidate for mediation if, by taking the time to mediate, you might suffer immediate personal or business harm. For example, if another company in the same field as your small manu­facturing firm has copied your trademark and is advertising their com­peting product widely, you need to stop them pronto, before your customers become confused. The best way to accomplish this (expense aside) is by getting a court to issue a restraining order. Similarly, if town officials announce their intention to cut down all the maple trees lining your street by next Thursday, you obviously need to get a judge to issue a court order preventing (enjoining) them from wielding the ax until the case can be heard. Once you get the court order stopping the tree choppers, you may want to ask the judge to put the case on hold while you try to resolve it through mediation.

6. Your Case Would Be Better Off in Small Claims Court

For some disputes, you may be better off filing in small claims court than initiating mediation. The speed and low cost of small claims court—and the fact that you don’t need a lawyer—make it fairly compa­rable to mediation at a community mediation center. Small claims courts are particularly good at handling disputes where the facts and the law are clear, including cases in which each party’s legal rights are plainly spelled out in writing, as in a lease or other contract. Disputes between landlords and tenants involving nonpayment of rent or return of security deposits, for example, are routinely handled in small claims court. The maximum amount for which you can sue in small claims court varies from state to state. In most states, it’s between $2,500 and $5,000.

But small claims judges—like most other judges—have neither the time nor the authority to help disputing parties resolve personal differ­ences, which means that interpersonal disputes often are not successfully resolved in small claims court.

In addition, small claims court offers no privacy from the public or the press, meaning that even small disputes can sometimes be blown way out of proportion. And some small claims courts require the parties to at least try some form of alternative dispute resolution—such as mediation—before their lawsuit can proceed. This means that you may decide to take your case to small claims court, only to find yourself mediating. For more on information on bringing a case in small claims court, see Everybody’s Guide to Small Claims Court (California and Na­tional Editions), by Ralph Warner (Nolo).

7. You Can Easily Win in Regular Court or Arbitration

Few disputes are so clear-cut that either side can confidently predict a pure victory in court. Even if a party wins, the costs and attorneys’ fees can take a big bite out of the spoils. But occasionally, it will clearly pay off to go to court. If you find yourself in that situation, it does not make sense to mediate, unless there are other compelling reasons to do so (to preserve a family, business, or social relationship, for example). As long as you are willing to tolerate the delays, loss of privacy, and other drawbacks of a lawsuit, you might as well take a route that will get you a decision 100% in your favor. Arbitration can also provide this type of absolute victory if the other side is willing—or required—to arbitrate.