- Leonard Berkowitz
When to Mediate
Updated April 2013
The decision as to whether to use a mediator, rather than some other dispute resolution process.
Parties, attorneys, and other representatives who are either in a dispute that does not have a specified dispute resolution procedure which they must follow, or who are negotiating a contract and designing a system for resolving disputes which may arise in the future.
Mediation is most useful in disputes where the parties feel that direct negotiation is not enough, but where they:
- wish to maintain control over the process and the ultimate decision;
- believe that the dispute can be resolved through discussion;
- are willing and able to compromise;
- are concerned about a possible widening of the dispute if it becomes public; and particularly,
- where there is a continuing relationship (or the possibility of a continuing relationship) which might be lost if a more contentious forum, such as arbitration or litigation, is used.
It is not an accident that the earliest users of mediation in the United States were labor and management in unionized environments. Since the 1930s and before, these powerful and autonomous parties have recognized that they can do themselves as well as each other great harm if the dispute is allowed to drag on, or goes so far as to cause a strike. They also recognize:
- that the disputes are complex, frequently involving multiple issues and hundreds of people, such that when the disputes are defined in legal terms long and expensive trials are probable;
- that each side needs to maintain control of its own agenda, and cannot afford to give up the right to make decisions unless it has clearly specified the scope of that grant of authority;
- that the handling of a labor dispute tends to require industrial and labor expertise which a judge and jury are unlikely to possess; and most of all,
- that there is a continuing working relationship, even if an uneasy one, which can easily be further damaged in the heated environment of a courtroom.
Over time, an increasing number and variety of other types of parties have recognized that their disputes share more of these characteristics than they once thought.
Because mediation is so flexible a process, approaches vary, and the orientation and ability of the specific mediators available should be checked in advance, if possible, by every party considering taking a dispute to mediation. The best general lay person's guide to the selection of a particular mediator is still A Consumer Guide to Selecting a Mediator, published by the Alaska Judicial Council (obsolete in its references, but for the most part useful far beyond that state.).
Note, however, that increasingly, the mediators available within a given program will have been preselected to fit a profile established by that program, so not all alternative "flavors" are necessarily available in every setting. For example, mediators who believe that it is important to have expertise in how a court or administrative agency would be likely to evaluate a given claim, and to provide strong guidance toward reaching an agreement in monetary terms that reflects that definition of "reality," are likely to be prevalent in many court-connected mediation programs. But this kind of mediator is highly unlikely to be found in the U.S. Postal Service's large-scale mediation program for addressing employee grievances, which is based on a different philosophical precept; in this instance, that the mediator's role is not to help settle the given dispute, so much as to help the parties understand and respect each other better with a view to improving their ability to work together in the future.
This concept is applicable to any situation in which a client, attorney, or other representative has the capacity to decide what process will be used to resolve a given dispute, or what process should be written into a contract in which the parties anticipate the possibility of disputes in future.