When Is Time For Mediation?

Is there a right time to enlist help of a mediator?  Is there are wrong time?  

Like any complicated matter, a conflict is unique in terms of its particular subject, the parties’ motivations, and the overall context.  So, decisions regarding how and when to attempt to resolve any specific conflict should be made in consideration of those attributes.  In some instances, like employment or contractual disputes, there may be a written policy or contractual provision which expressly identifies when mediation should occur.  In most cases, however, the decision is left to the parties and, if they have them, their representatives.

When faced with such a decision, a few basic considerations which may impact the question of when to mediate a conflict:

Future Relationship of the Parties:  if the conflicted parties are likely to be required to interact in the future (parents, family members, business partners) it may behoove the parties to mediate as quickly as possible.  The less time the parties spend engaged in conflict, the fewer angry words exchanged, the better chance to preserve a future relationship.

Inability to Communicate:  if the parties ability to have a productive conversation has been diminished or eliminated by anger  (I understand a fury in your words, but not the words.  Desdemona to Othello).  Mediation may be timely.  The presence of a mediator, and the ability to privately caucus, may offer the parties a method to have a constructive discussion that would otherwise not be possible.

Lack of Realistic Understanding.  If one, or both, the parties in a conflict are unwilling to acknowledge the realities implicated by the conflict (non-paying tenant won’t leave; party overvaluing claim), mediation may help.  A third-party view of the conflict may provide a reality check.  Appearances and positions do not always reflect the truth.  Parties to a conflict usually can’t resolve a dispute unless both sides share a realistic vision of possible outcomes. 

Appearance of Weakness.  There are occasions, especially in lawsuits, when the parties may have an interest in determining whether the decision to mediate might send a signal of lack of conviction in the merits of their claim or defense to the other side.  Serious consideration should be given to how a desire to mediate is expressed, and care should be taken to avoid creating an appearance of weakness.  In such instances, especially if involved in active litigation, it may be better to reference an external authority (court rules, policies, suggestion of judge) as the source of the desire to mediate.

There is no definitive answer to the question of when to mediate.  Think about the context of the conflict and determine whether the parties are effectively communicating.  Be mindful of the appearances and signals sent by a suggestion of mediation and whether a future relationship is likely.  Most of all, think hard about whether mediation could help.  If so, it is likely the right time to mediate.

For an in-depth discussion of the question of the timing of mediation, read Eelco Meerdink’s excellent article:  To Mediate or Not To Mediate?  http://goo.gl/VC87U5

Conflict As Growth Opportunity: Make Most Out Of Mediation

Like all other events, conflict offers the parties a chance to learn and grow as they progress through the journey from claim to resolution.  This “Claims Journal” article offers some insights on how to transform a conflict into a learning experience.   http://ht.ly/lxmjt.  By analyzing the “how” and “why” you are dealing with a conflict, you should be able to handle the next conflict better and, perhaps, avoid it altogether.

The initial method of responding to a dispute should be evaluated.  Ask whether it would be fruitful to consider mediation at the earliest stage of conflict.  Look at the costs of being involved in a long term conflict and compare with the messages that are sent by quick settlement.  In an employment setting, restoration of productivity and workplace harmony may outweigh the notion that an early settlement signifies a kind of easy concession.  Also, think about whether an unwillingness to resolve a conflict early in the process sends a signal that is negative or demonstrates an appropriate resilience.

Look at conflict preparation, as well.  Is there a fixed strategy in place to deal with a dispute?  Is there a pre-existing relationship with counsel who shares your strategic approach?  Hiring counsel who’s style is inconsistent with your own goals may create costs, both financial and in terms of good will, that are unanticipated and unwanted.  Look at your record-keeping and documentation processes, too.

Do you have the ability to respond to claims with the necessary information?  Good records may defeat a claim right at the start or provide substantial strategic leverage during a mediation.

Most critically, think about your approach to settlement.  Are you in the conflict to win, despite costs or damage to future relationships?  Do you consider how the outcome of the conflict effects your reputation?  Try to make a habit of defining your most important goals before being called upon to settle a dispute.  That way, you will have a chance to make decisions during mediation that are consistent with your goals, despite whatever emotional pressures might exist.

Lawsuits and claims are difficult, draining experiences.  Don’t just survive, learn while you are enduring.  It will make a big difference the next time you are pulled into a dispute.