Mediation is not new. In fact, its roots are believe to go back thousands of years to ancient Mesopotamia. Yet there is still some resistance to it in certain spheres of the legal profession, and amongst the parties to a dispute. Some of this resistance comes from common beliefs that it is not appropriate in the circumstances.
So what are these commonly-held beliefs, and how do they stand up to scrutiny? In this article we look at a common one: that the other party is too unreasonable.
Common Mediation Myths: The other party is too unreasonable
By the time anyone gets to the point of even considering mediation there is a dispute. Without that there would be nothing to go to mediation over. However some disputes are marked by a wider gulf between the parties positions. Others are characterized by higher than average conflict between the parties and even their lawyers.
Many people in these circumstances become convinced that mediation is a waste of time and money as the other party will not be reasonable or “come around” or “be reasonable”.
It is true that not all mediations are successful and that those that are unsuccessful are often marked by a widely different view of the case by the opposing parties and their lawyers. However the overwhelming majority of cases where parties hold this belief that mediation is not viable due to a divergence in opinion on the strength of the parties’ cases settle notwithstanding that at mediation. There are several reasons for this.
Even when parties and their lawyers hold differing views on the strengths of their cases, continuing a dispute is tiring, stressful and expensive for all involved and the allure of resolution at mediation is a powerful force to cause parties to compromise even beyond what they thought going in was a reasonable distance.
When compared to simply sending offers back and forth, mediation is an event which is prepared for, anticipated, and gets everyone “in the room”. In the days leading up to the mediation parties imagine what it would be like to have the dispute resolved.
And let’s not forget the impact of the mediator. Becoming a licensed and certified mediator takes many, many hours of training. Effective mediators can be incredibly effective at moving people off positions in a delicate way.
The very dynamics of a dispute results in people polarizing their views about their case, the other party and just how unreasonable they are, yet in most cases the parties at one point, had a working relationship of some sort.
There are few, if any cases, where an attempt at mediation is not worth it given the risks of litigation. What is important is at what point in time the case is deemed ready for mediation. When, how and with what mediator you mediate with are all questions that when answered carefully can substantially increase the chances of success. While some cases are definitely more challenging to bring to resolution at mediation it is usually a mistake to conclude that a case is not suitable for mediation.
For more information, get in touch with our Mediation & Arbitration team.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.