Securing an Agreement to Mediate
The mediation service will usually start by sending the other party a form letter asking her to agree to mediate, and follow up by telephone if she doesn’t respond.
If you and the other party are required to mediate under the terms of a contract or court order, the other party has no legal choice but to mediate.
Even so, she may still drag her feet or try to avoid it. In this situation, the mediation service should be particularly persistent in sending letters and making repeat phone calls to set a firm date for the mediation. (If you show up and the other side doesn’t, at least you’ve fulfilled your obligation under the contract or court order and can go on to pursue other legal remedies.)1. How a Mediation Service Works to Overcome Resistance
The initial letter and supporting materials that a mediation service typically sends to the other party will emphasize the benefits of mediation, stating the advantages in terms of low cost, privacy, and speed. Letters from private dispute resolution firms often go on to point out the high quality of the people on their mediation panels, their “user-friendliness,” and their competitive pricing.
Some community mediation centers go beyond this “soft-sell” approach. In an effort to get people to the table, they sometimes play up their affiliations with courts or government agencies, coming fairly close to making a subtle threat that negative consequences may result from a failure to mediate.
0 Don't be intimidated by a tough contact letter. If you are the recipient of a heavy-handed contact letter, there is no reason to be pressured into doing something you don’t want to do. Unless a contract or court order requires you to mediate, you are under no obligation to do so. Whether you choose to mediate should depend on how you assess what is in your own best interest, not on the tone of a mediation service’s letter.
(See Chapter 2 for a discussion of factors that favor and oppose using mediation.)If the mediation service gets no response to its initial letter within a week or two, the staff person—often called “case manager” or “case coordinator”—will usually follow up with a phone call (or series of phone calls) to answer the other side’s questions about mediation and review mediation’s potential benefits. If the party declines to participate based on a lawyer’s advice, the staff person may ask permission to call the lawyer directly to discuss the situation.
How successful a case manager is likely to be in overcoming a person’s resistance to mediation will depend on the facts of your case, the other party’s personality, and the case manager’s own skills. For example, some of the better private dispute resolution companies have very well-trained case managers who are quite skilled at turning a party’s “no” (about mediating) into a “yes.”
2. Working Out an Agreement to Mediate
After proposing mediation, you should expect to hear from your mediation service within a week or two about the results of their contact with the other side. If not, call to check on your case. Often, politely reminding the case manager or other person whose job it is to set up the mediation that you are eager to get into mediation may help move things along.
If all goes as you hope, the case manager will soon report good news: the other side is willing and ready to mediate. If so, you can now select a mediator and schedule the mediation. Often, however, the case manager will report that the other party’s response is a pretty firm “maybe.” Here is a short list of objections or issues the other party might raise:
• “I might mediate, but only if you pay all the fees, since it was your idea.”
• “I might mediate, but only with a certain mediator.”
• “I might mediate, but I want to limit (or expand) the issues to be discussed.”
• “I might mediate, but I want to use a different mediation service.”
• “I won’t mediate, but I might consider another type of dispute resolution (such as binding arbitration).”
• “I need more time to think about it [or, investigate my case, or talk to my lawyer, or take care of personal business].”
Although this type of conditional response may seem disappointing, it’s actually quite positive—it means that you and the other side (with the help of the mediation service) are now negotiating about resolving your dispute.
Chances are excellent that a competent case manager will be able to guide you and the other party through these preliminary negotiations so that mediation can take place.”Depending on the other side’s position, here are some strategies you and/or the case manager might adopt in response:
| IF THE OTHER PARTY SAYS | YOU CAN RESPOND |
| Might mediate, but won't pay | • If fees are low, offer to pay them all. • Agree to split fees, but during the mediation you can discuss dividing up payment differently. • Offer to pay the entire administrative fee, but split the hourly fees. • Offer to pay up to some fixed amount, after which you each pay half. |
| Might mediate, but only with a certain mediator | • Agree to the other party's choice of mediator. • Suggest that you each submit a short list of preferred mediators from the service's panel. If you both name the same person, that person will be selected. • Agree that the case manager may appoint an available mediator on the basis of skills, knowledge, and availability. • Suggest that the case manager propose three possible mediators; you and the other party each get to eliminate one name. |
| Might mediate, but wants different mediator | • If fees are a problem, find out whether the service you chose may be willing mediation service or independent to lower them. • Agree to the change, unless the other party gains some unfair advantage by using the other service or mediator. • If you don't like the service or mediator the other party has proposed, suggest some other possibilities and allow him to choose from the list. |
| Might mediate, but wants to limit or expand issues | • Agree, unless the list of issues excludes important items or is so long that the mediation will be unfocused. |
| Won't mediate, but might arbitrate | • Suggest advisory (nonbinding) arbitration (see Chapter 1). • Suggest mediation followed by a written recommendation (see Chapter 1). |
| Wants more time to think it over | • Agree, but set a reasonable deadline to begin mediation. • Agree, but ask the other side to agree to an interim solution if appropriate (for example, “Neither of us will cut down any trees on our property line until we mediate”). |
Mediation services vary in how long they will keep trying to get a reluctant party to agree to mediate. Community mediation centers, with limited funding and staff, may make just one or two follow-up calls to the other party before marking your case “party refuses to mediate” and closing the file. Private dispute resolution companies, on the other hand, may keep a case manager working much longer to try to bring a dispute to mediation. They are highly motivated to do so because private firms generate most of their income from hourly fees charged during the actual mediation. Independent mediators in private practice, as noted earlier, generally prefer not to get involved in trying to persuade a reluctant party to mediate. Faced with hesitation from the other side, most independent mediators will probably ask you to try on your own to bring the other person to the table.
3. If the Other Party Refuses to Mediate
If the other party refuses to mediate, there are still a few things you can try. Remember, there are strategic times in every dispute when a person is likely to be more inclined to mediate than others—for example, just before or after a lawsuit has been filed. Consider when the next “strategic point” will occur and prepare to reintroduce your proposal to mediate then.
If no obvious “strategic points” are coming up soon, you may want to try to create one. For example, if no lawsuit has been filed in your case, you can threaten to file one. One way to do this is to have a lawyer prepare the summons and complaint (if your case can be taken to small claims court, you can prepare the papers yourself) and send them to the other party with a letter stating that you plan to file them if he refuses to mediate.
Be cautious with this approach, however; preparing the paperwork could get expensive—and if you hire a lawyer, you may be persuaded to undertake more aggressive legal action than you originally had intended. There is also the danger that you threat will turn the other party off (or convince her to launch a preemptive strike and sue you first)! And in some states, it’s illegal to threaten someone with litigation for failing to agree to certain demands.If you file a lawsuit but still want to mediate, tell the judge that you would prefer to try resolving the dispute through mediation. (In some courts, your case may be sent to mediation automatically.) Many judges will be glad to get your case off their docket and will strongly suggest that the other party try mediation. Sometimes the judge will even go a step farther and refer you both to a local mediation service. In this context, it will often be difficult for the other side to resist the judge’s suggestion—after all, the same judge will decide the case.
There are some obvious disadvantages to this, however. First, you have to pay court filing fees, which may amount to several hundred dollars, plus an attorney’s fee (unless you represent yourself). Second, a party who agrees to mediate only under great pressure may not come to the mediation with an open mind. Third, a contested court case might result in both parties becoming too angry to mediate. Despite these drawbacks, if you are intent on going to mediation, this tactic might get you there.
A variation on this tactic can also be used in disputes involving minor criminal offenses. Let’s assume, for example, that you are troubled by excessive noise from a neighbor’s house, and your neighbor has refused your invitation to mediate. At this point, you can file a complaint about the noise with the police, and tell the responding officer (or the prosecutor, if you get that far) that you would like to mediate. There is a good chance the police will be delighted to divert the case from the criminal justice system to a court-connected mediation program or community mediation center. Now, when the mediation program contacts your neighbor, the letter will state that the dispute has been referred by the police. Your chances of getting your neighbor to mediate should markedly improve. ■