Mediation is a popular and effective way to resolve legal disputes without going to court. It allows parties to come together with a neutral third-party mediator and work towards a mutually agreeable solution. However, as noted by Wynne S. Carvill, mediator and arbitrator, in mediation, settlement is always possible but never certain. Certain factors can act as barriers to settlement.
Mediation can occur early on in a dispute, even before an action is filed. This may be because parties want to avoid the costs of litigation or because mediation is required by an agreement. However, one challenge is that without the information obtained during discovery, parties may be hesitant to make concessions. Mediation can never happen too soon because there is always something unknown that will be discovered later.
To avoid the “too soon” problem, it is important for the mediator to discuss in advance what each side needs to evaluate the case thoroughly. Lawyers should consider what their side still needs and may need to request more information exchanges or adjourn the mediation if necessary. Ultimately, the settlement process is a risk management exercise where parties liquidate the risk of what is not known.
Detaching emotions
Emotions can run high during mediation, and parties may find it difficult to separate their emotions from the facts of the case.
This can make it challenging for them to negotiate effectively and come to a compromise. When parties are emotionally invested in an issue, they may have difficulty seeing the other person’s perspective or being open to compromise. Emotions can also lead to misunderstandings, miscommunications, and ultimately, impasse.
Detaching emotions does not necessarily mean completely suppressing or ignoring them. Instead, it means being able to acknowledge and express emotions in a constructive way, while still remaining focused on the issues at hand. This allows parties to engage in a more productive and solution-focused dialogue, rather than getting stuck in an emotional cycle of blame and defensiveness.
Lawyers and their clients can focus on interests, not positions. This means that rather than focusing on what each party wants, try to identify the underlying interests that are driving those positions. This can help parties find common ground and work toward a mutually acceptable solution.
The importance of using a neutral third party as a mediator cannot be displaced. Such quality allows a mediator to help parties to navigate their emotions and keep the conversation focused on the issues at hand. In other words, a mediator can help parties find common ground and work toward a mutually acceptable solution.
Unrealistic expectations
Parties may also have unrealistic expectations of what they can achieve in mediation. They may be unwilling to make concessions or may have a rigid idea of what they want to achieve. This can make it difficult to find common ground and reach a settlement.
Unrealistic expectations of one or both parties present a great obstacle to settlement in mediation. Lawyers and their clients may have a limited view of the dispute, focusing only on their perspective and undervaluing the opposing side’s strengths.
This often leads to significant disparities between the initial demands and offers, which could reflect unrealistic expectations.
To tackle this challenge, mediators use various strategies, and attorneys can also apply these methods to prepare their clients for mediation.
Attorneys should engage in risk analysis to determine the potential recovery range for the plaintiff and identify issues that pose a risk of loss. By assessing each risk and assigning a percentage to it, attorneys can accurately calculate the total risk of the case.
This process helps plaintiffs lower the value of their claim, and defendants increase it. Counsel should also consider the possibility of losing an issue and express their confidence level as a percentage. By presenting the information in this way, attorneys can provide a realistic assessment to their clients.
It is essential to conduct the risk analysis before mediation to prevent a mediator from leading attorneys through it in front of their clients. Attorneys may be hesitant to engage in the exercise, but it is crucial to do so to avoid unrealistic expectations.
Additionally, reviewing the opposing side’s mediation statement can help identify differences in their risk analysis, and counsel can use this information to arm the mediator with new facts or arguments to present to the other side.
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During the mediation process, parties may become more flexible, depending on whether the mediator has established a trusting relationship with them.
To facilitate this process, counsel should welcome direct interaction between the mediator and their clients, and clients should be involved in the calls in advance of the scheduled mediation.
Lack of understanding of the process
Parties may not fully understand the mediation process. They may not realise that mediation is a voluntary process, or they may not understand the role of the mediator. This can lead to misunderstandings and confusion, which can derail the mediation process.
A lack of understanding of the mediation process can be a significant barrier to settlement in mediation because parties may not fully understand how the process works, what to expect, and how to participate effectively. This lack of understanding can result in parties feeling overwhelmed, frustrated, or even disengaged from the process, which can hinder their ability to reach a settlement.
It is important to explain that the mediator does not take sides or make decisions for the parties. The mediator is a neutral third party who facilitates the conversation between the parties and helps them to reach a mutually acceptable solution.
Parties should be provided with a clear outline of the mediation process, including how the session will be structured, what types of information will be discussed, and what the expected outcomes are.
Parties should be given the opportunity to ask questions and express any concerns they may have about the mediation process and provided guidance on how to prepare for the mediation session.
