How to Propose Mediation

Mediation doesn’t just happen—usually one party has to propose it. It’s then up to the other party to say yes or no. (Of course, no one has to propose mediation if a judge or government agency orders it, or a contract requires it—see Chapter 3 for more on this situation.) Here, we present a strategy that will help you propose mediation in a way that is most likely to persuade the other party to give it a try.

1. When to Propose Mediation

Unless you know that the other party is willing to mediate, start by assuming that she will be at least somewhat reluctant (in fact, she might oppose it simply because it was your idea). To increase the chances of reaching an agreement to mediate, try to make your proposal at a time when the other side is most likely to say “yes.”

This isn’t as hard as you might think. In the course of any dispute, there are usually events, such as a fact-finding hearing or court appear­ance, that promise to be expensive, scary, or risky. It follows that a proposal to mediate just before one of these events is scheduled may be especially appealing to the other side.

a. If Your Dispute Is Not Yet in Litigation

If your dispute has not yet resulted in a court filing or other official proceeding, you can often convince the other party to mediate by presenting mediation as a way to avoid a formal action. For example, if you have an employment-related claim against your employer that is scheduled for a fact-finding hearing under your company’s internal grievance procedure, your proposal to mediate shortly before the hearing date may be welcomed as a way to possibly settle your claim before it escalates.

Similarly, if your dispute is with a small company that you know is trying to go public, the owners may be eager to clear up all possible disputes rather than risk a lawsuit at a critical time.

Particularly with smaller disputes, you can often make mediation more appealing to the other party by proposing it at one of those pre­dictable times during the year when many people like to get disputes out of the way and make a fresh start.

Similarly, you can propose mediation just before some personal event in the other party’s life that may put him in a mood to “clear the air.” It’s hard to know exactly what events will trigger such a mood in another person, but common ones include an upcoming marriage, birthday, birth of a child, anniversary, change in employment, or even a visit from a relative.

b. If Your Case Is in Litigation

If your dispute has already resulted in a lawsuit, it can make sense to push for mediation just before an expensive or otherwise unpleasant stage of the litigation is scheduled to occur. For example, you might propose mediation just before the other side has scheduled the deposi­tion of a physician or other expensive expert witness. Similarly, you might suggest mediation just before the deadline for exchanging sensi­tive documents, or before an important pretrial motion (for example, one considering whether key evidence will be admissible at trial). Sometimes, it’s even possible to head off a fast-approaching trial date by proposing a last ditch effort to mediate—judges will sometimes agree to delay (continue) the trial to give mediation a chance.

Timeline of Strategic Points to Initiate Mediation

before date when before before before before

lawsuit filed answer due deposition document exchange pretrial motions trial date

2. Contact the Mediator or Mediation Service

You may be tempted to call and ask the other party directly to give mediation a try. This might work if you have a history of trust and goodwill that remains at least somewhat intact.

If the other party has had experience with mediation, he might be more likely to accept your proposal. For example, if you propose mediation to a home repair contractor who is a member of a builder’s trade group that supported the creation of a community mediation center in your town, you could reasonably anticipate a more positive response.

The best way to keep distrust from scuttling your efforts is to ask a mediation service to extend the invitation to mediate. Mediation services have lots of experience in convincing reluctant parties to give mediation a try. After all, a mediation company or organization that can’t get people to the bargaining table won’t stay in business long. This holds true even for nonprofit, community mediation centers; they must conduct a large number of mediations to justify continued support from the public agencies that fund them.

Many independent mediators prefer not to "sell" a party on mediating. As discussed in more detail in Chapter 3, many independent media­tors prefer not to try to talk people into mediating, in part because most of them don’t have trained staff to do the job. And they are reluctant to do it themselves, because the conversation might give the appearance of compromising their neutrality. For this reason, if the other party is likely to be reluctant to mediate, you are better off using a mediation service rather than an independent mediator.

Should you just contact the mediation service without even bringing up the subject of mediating with the other party? This may be tempting, but it overlooks an important fact of human behavior: people don’t like to be surprised. If you call a mediation service without telling the other party, she may be extremely suspicious of your having initiated a process without her knowledge.

3. Send Your Opponent a Letter

A short, polite letter is usually the best way to notify another party that you want to mediate and will be contacting a mediation service. (An exception to this general rule might occur if you and the other side have had such a close relationship in the past that, despite your dispute, even a friendly letter would seem too formal.) Why is a letter usually better than a phone call? In writing, you can simply state that you want to mediate, with no need to discuss the merits of the dispute. Personal contact, such as a phone call, might invite an argument about the merits of mediation or of your case, exactly the sort of interaction you probably want to avoid at this point.

Your letter should let the other side know that you want to mediate, without saying anything that is likely to trigger a defensive response. Here are some suggestions that will help you set the right tone:

• State that you would like to try mediation and list some reasons why. For example:

✓ “If mediation works, we can both save a lot of time, aggravation, and money.”

✓ “ Mediation is quick and inexpensive, and we can do it without lawyers.”

✓ “Mediation carries no risk because the mediator is neutral and has no power to impose a decision on us.”

• Do not try to persuade the other person to mediate—leave that up to the mediation service.

• Do not presume to say what the other person thinks or wants. For example, it’s fine to say, “I want to mediate because I believe media­tion is an excellent way to solve disputes.” But it’s a mistake to say, “You probably don’t know much about mediation” or “I doubt you will agree to this....” A good way to steer clear of this problem is simply to avoid using the word “you.”

• Never threaten the other person.

• State clearly that you have no personal connection with the media­tion service, other than contacting them for the purposes of this mediation. The other party may not believe you, but at least you will have raised the issue and stated the facts. If the other person wants more input in the selection process, you can offer to use another mediation service.

• Let the other person know that the mediation service will be in touch.

• Let the other person know that you are using this book and offer to provide a copy so that you can both be on the “same page” regarding mediation. If the cost of the book is a problem, find out whether it is available in your local public library.

Here’s a sample letter that will give you some ideas for drafting your own:

EXAMPLE: Mike and Ron are co-owners of Big Slice Pizza, Inc., a restaurant. For some time, they have had serious arguments over various aspects of running their business, including pricing meals and dealing with employees. Each owns half the company. If they can’t work out their differences or decide who will buy the other out, the business may fail. They have had several face- to-face conversations in an effort to negotiate a settlement, without success. Mike has read several books on dispute resolution and believes the time is right to mediate. After some investigation, he has identified a local private dispute resolution company, Settle It Now, Inc., as a good mediation service to handle the case. Mike and Ron have never discussed mediation and Mike doesn’t know if Ron will be willing to give mediation a try. To start the process, Mike writes the following letter to Ron:

October 24, 2004

Dear Ron:

I am writing to let you know that I have given our situation at Big Slice Pizza a lot of thought and have decided that one way we can both try to get this thing resolved without spending a huge amount of time and a fortune on lawyers is to try mediation.

I have read that mediation is a simple and straightforward way for people to try to work out a solution to many different kinds of disputes. As I understand it, media­tion is quick, we don’t need lawyers, it’s fairly inexpensive, and no decisions or actions can be imposed on either of us unless we both freely agree. For starters, we don’t need to make any commitment short of showing up and sitting down with a neutral third person who will try to help us work out a solution. I’m willing to give it a try if you are.

As a first step, I’ve asked Settle It Now, Inc., a private dispute resolution company here in town, to send you some information about their service. I don’t have any personal connection with this company; they just seem to have experience working with businesses like ours. If for any reason you don’t like Settle It Now, I’m open to your suggestions for another mediation service for us to try.

Incidentally, I am reading a book published by Nolo called Mediate, Don’t Litigate. I find it very helpful, and if you would like your own copy I will be happy to find you one. If both of us are using the same resource it may help this entire matter go more smoothly.

Yours,

Mike

C.