People invited to participate in mediation may refuse to attend and cite various reasons for doing so. Often, these reasons stem from a lack of understanding or fear of something unfamiliar to them, and a mediator can help address these pain points.
Being involved in a dispute can leave an unpleasant feeling for all those involved; anger, frustration, disappointment, fear – to name a few. For complex problems, there may be the threat of lawsuits as well. When both parties in disputes are called to settle their differences through mediation, these feelings can arise and lead them to hesitate or refuse to participate in dispute resolution. They may cite different reasons to avoid mediation, including the below nine most commonly heard by mediators:
1. “Perhaps it’s better for me to go to court so I can get what I want.”
When people think about dispute resolution, what may come first to their mind is solving the problem through courts. Mediation can come across as unfamiliar territory, where they might feel they lack control. As a result, they will be wary of saying ‘yes’ when invited to mediation; but what happens during mediation is not often what they expected.
Contrary to their assumption, the process of mediation empowers them and puts them in control. It is dependent upon the discussion between both parties who speak directly with one another, and determine the flow of discussion. The mediator is only there to facilitate the communication and level the playing field, but not to make any decisions for them. Both parties negotiate and come up with creative outcomes until they reach an agreement that satisfies both of their interests. This leads to a win-win solution that everyone involved can live with personally and legally.
2. “Is it possible to truly reach an agreement in mediation? Will I get what I am paying for?”
Even if mediation is a viable alternative to court, it can generate an agreement depending on the discussion that transpired between the participants and will always result in an outcome. To ensure that it could be enforced, the agreement could be put into writing legally and signed by both sides. This makes the agreement a legally-enforceable contract as a Deed or Consent Minutes of Order. Participants to mediation have the option to consult with lawyers to legally formalise the terms of the deal, if they wish.
When it comes to paying the fees, both participants are encouraged to share the cost of mediation equally. They can change this if they wanted depending on what they have agreed upon in their discussion. Sometimes one party might pay the total cost up front but the costs of the mediation and any future costs of formalising the outcome legally are then on the agenda for discussion at the joint session of mediation.
Additionally, mediation is more cost-effective than going through court because the process is shorter, while enabling participants to avoid paying expenses on legal documents and complying with court rules and process. In mediation, both parties only need to pay for the mediator’s fee as well as the costs of any legal advice they may obtain as and when they need it.
3. “Mediation might just waste our time, and eventually we’ll end up in court.”
Ironically, mediation may help participants save time because 80% of the cases that utilise this form of dispute resolution reach settlement during or after the process. While most cases can be settled between three weeks to three months relative to the complexity of the issue and the number of participants involved, depending on the nature of the conflict, some cases can settle in one day through mediation.
In court, dispute resolution can stretch to years, which can be stressful for everyone who is part of the case. This is time that could be better spent on family, personal endeavours or career and business activities. As a result, expenses mount for both sides, making litigation more costly than mediation. Moreover, the time waste and expense may be completely disheartening if the party is on the losing side in court where costs are awarded or follow the event. In mediation, the aim is for a mutually-satisfactory outcome personally and legally so the shorter time spent mediating will be worthwhile for everyone involved.
4. “I don’t see any way for us to discuss our issue amicably.”
People involved in disputes will naturally feel animosity toward each other, and would not want to be involved in a face-to-face discussion. To address this, mediators conduct initial consultations with both parties. They speak separately with them to understand their side of the story. Participants can explain to them the circumstances that led to the conflict, and air out their grievances. Meanwhile, mediators orient the participants on what factors can hinder resolution and the potential best and worst case scenarios.
On the day of the joint session, participants are given separate rooms when they arrive at the venue to be able to settle their stress and anxiety. Once the tension has reduced, only people with settlement authority are invited to take part in the joint session. Often the lawyers sit at a separate table in the back of the room. Mediators lay down the ground rules and the agenda for the meeting, but it is the participants who decide who gets to speak first. The mediator carefully listens to both participants, which can make both of them feel that they have their “day in court”. Since statements can be influenced by hostility, the mediator paraphrases them to make the language neutral and less hurtful to all those involved. This will also help participants gain a clearer understanding of the topics of their dispute.
However, the discussion may still get heated. In this case, the mediator will call for a break and meet with both sides separately. The mediator can go back and forth between both sides to facilitate the discussion, and to help them brainstorm possible solutions. He or she will reality-test these solutions with both parties in private and orient them about their options. When the parties have cooled down, they can return to the negotiating table and continue the discussion until they reach a resolution.