Is Your Case Ready for Mediation?

In theory, mediation can occur at any point in a dispute. The fact that a court case has been filed, or even that a trial is about to begin, doesn’t rule out mediation—in fact, a looming trial can be a powerful incentive to give mediation a try.

As a general rule, however, the sooner you can bring a dispute to mediation, the better. Not only can an early mediation mean a quick end to uncertainty and anxiety (especially when litigation has begun or is seriously threatened), but it also can mean significant savings of money, time, and energy.

On the other hand, parties sometimes try to mediate too soon. This can occur when people are still extremely angry (some mediators inelegantly refer to this as “the frothing at the mouth stage”) and thus not yet ready to participate in a rational discussion. Mediation can also be premature when one party does not yet have enough information to know what would constitute a reasonable settlement. For example, if someone is hurt in a car accident and doctors have not yet determined the full extent of her injuries, it makes sense to postpone settlement discussions until the injured person has a better sense of what her medical bills, time lost from work, and other effects of the injury will be.

Here are several factors that will help you decide whether your case is ripe for mediation.

1. Settlement Talks Have Failed

Direct negotiation between disputing parties is the most efficient way to resolve most disputes. Not only do one-on-one negotiations save time, they also eliminate the expense and delay of getting third parties (in­cluding mediators) involved. Whenever you have a dispute, your first step should be to contact the other party to see if you can work things out. If you have not tried to settle your dispute directly with your opponent, it is probably too soon to mediate.

2. Emotions Have Had Some Time to Cool

Emotions run high in many disputes, even those over seemingly dry business matters. Although mediation can accommodate people with strong emotions, there may be an initial period when one party, or even both parties, are so angry that rational discussion is difficult. If your dispute has left you feeling intensely angry, hurt, or even full of rage, you should give yourself some time to deal with these feelings before trying to mediate. Similarly, if you recognize these emotions in the other party, it may be wise to slow things down.

3. You Have Enough Information to Evaluate Settlement Options

In order to mediate intelligently, you need enough information about your dispute to know how to settle it to your advantage. Sorting out all the facts that underlie a dispute can take time. For example, a boundary dispute with a neighbor usually can’t be mediated until a survey is completed. A period of delay will also be useful if you want to do some legal research or get a lawyer’s opinion about the important legal issues in your dispute and the value of your claims. Until you and the other party have enough information to evaluate your settlement options intelligently, it’s probably too early to mediate.

4. The Parties Are Not Too Set in Their Positions

Some disputants wait too long to begin mediation. In the jargon of mediators, their case has become “overripe.” The usual result of trying to bring an overripe case to mediation is either that one side refuses to participate or that the mediation fails to produce a settlement.

Your dispute may be overripe if any of the following are true:

• Preparations for trial have proceeded too far. A party who has invested heavily in preparing for trial—in terms of legal fees, time, and effort—may be much less willing to settle for anything less than a full court “victory.”

• The people personally involved in the dispute no longer control it.

EXAMPLE: Peter, the sales manager of a computer-parts manufacturer, and Rosamund, the purchasing agent for a computer manufacturer, get into a dispute over the quality (or lack thereof) of certain parts Peter’s company has delivered to Rosamund. These two have been doing business together for years, and though they disagree about this job, they have a history of working things out so as to not jeopardize their mutually beneficial relationship. As long as they can keep in sight the mutual advantage of continuing to do business together, a mediator can probably help them solve their immediate dispute. But if the matter gets “bumped upstairs” to their respective bosses or company lawyers, each side’s position may harden. Now, instead of being motivated to compromise so as to make future business dealings possible, both companies may make it a priority to try and get as much money out of the other as possible.

QSometimes, it's a good idea to bring in a more objective person. If the original disputants feel extremely bitter towards each other or have really gotten stuck in their bargaining positions, they may find it difficult to mediate successfully. In these situations, a manager or lawyer may take a more dispassionate view and be better able to work out a reasonable settlement in mediation.

• Emotional links among disputants are “dead.” Disputes involving close interpersonal relationships between friends, spouses, and relatives are particularly likely to become overripe. This can happen when hurt feelings have been allowed to fester so long that the parties would rather live with the situation as it is than risk opening up old wounds. For example, a brother and sister fighting bitterly over their mother’s estate may be open to mediation for a couple of months or more after the mother’s death. But if a couple of years pass without any resolution, their relationship may be so compro­mised that neither is motivated to resuscitate it through mediation. Still, if either person wants to try for a resolution, it’s worth the effort—many mediations that look hopeless at the start end in a surprisingly successful way.

B.