UNDERSTANDING AND ADDRESSING REASONS FOR RELUCTANCE OR REFUSAL TO MEDIATE

Experienced mediators and counsel who participate regularly in ADR (alternative dispute resolution) hear lots of reasons to justify not mediating. Some lawyers are simply reluctant to try something that is new to them.

 

Others don’t want to settle cases but want to win them in a courtroom, a forum that is familiar. Yet, in a growing number of industries throughout the country, mediation is a proven process that is being used by litigators to save time and money and avoid the risk of trial, whether in court or arbitration. What are the top ten specious reasons often given for not mediating?

 

Costs

Upfront costs can also keep clients from mediating. Mediator fees and associated administrative expenses may appear excessive and unnecessary. Clients must understand that these costs may be far lower than those associated with protracted and potentially fruitless litigation. Another way to address this concern is to point out that reimbursement could be part of a negotiated settlement.

 

Lack of knowledge of the process

Client ambivalence to mediation should be met with a straightforward explanation of the pros and cons of mediation vs. Iitigation. You might also suggest clients do their own research by contacting mediation services and speaking to people who have participated in mediations.

 

If parties remain unconvinced about mediating a dispute, you may ask that the mediation service contact them to more fully describe its benefits and assure them that their participation will not affect their legal rights or future options.

 

Explain that the worst-case scenario is that the mediation fails and parties proceed with litigation ­ as they would have anyway. Still, with more than 85 percent of mediations resulting in settlements, the odds are thet the stakes of being unsuccesful are low. Mediation offers all parties a chance, usually the only chance in the life of a case, to sit at a table with their adversaries and spend sufficient time trying to work things out. The next stop is the court where time consuming and expensive litigation will commence. The answer to the question "Why should I mediate?" may be found in the answer to another question: "What have you got to lose?"

 

Show Weakness

The perceiption that saying I want to mediate will show weakness to the other side and telegraph that I think I have a weak case.

 

First of all, the statement is not true. Mediation is now so widely accepted that many practitioners recognize it as being almost always in their client’s best interests, weak case or strong. The only thing you can attribute to someone who wants to settle in advance of trial is wisdom, not weakness. Mediation is a voluntary, confidential process in which the parties are in charge, and it avoids the risk of some third party (whether judge or arbitration panel) making a decision that the parties cannot control, and sometimes cannot comprehend.

 

Moreover, a reluctant lawyer can sound out the other side’s willingness to mediate by having the mediator make discreet inquiry. They can request mediation from both sides, often without a commitment from either. Where they do have one side expressing interest, it is not told to the other until both agree. Expressing an interest in mediation does not at all signal a weak case.

 

An attorney may believe that suggesting mediation to an angry client, bent on vindication, will be perceived as a sign of weakness. However, when a client appreciates that 93 percent of all cases filed settle before going to trial, voluntary submittal of the dispute to mediation may compare favorably with a 20-minute pretrial settlement conference in front of a harried judge.

 

Mistrust

Objections to mediation may also arise from clients and attorneys suspicions. For example, a party may initially react with suspicion when mediation is suggested. Why does the other side (or my attorney) want to mediate now? Do they have something on us? Should we postpone and try to get something on them? Do they already have the upper hand?

 

Clarify your intake procedures and explain the referral and process.

 

Attorney Losing Control

Some attorneys fear ­ with some justification ­ that they will lose control and possibly jeopardize their relationship with their client by mediating a dispute. Without the built-in safeguards in traditional litigation discouraging abuse by involved parties, mediation can appear to be unmanageable. Still, the ultimate safeguard in mediation is that participation at any point in the process is voluntary. Further, settlement rates exceed 85 percent, and no settlement is reached without everyone's consent. In these respects, mediation gives all parties more control of the process and outcome than does litigation.

 

Slam Dunk Case - Sure Winner - Why Mediate?

Attorneys attitude may be that he has a slam-dunk case and there is no point in mediating.

 

Lawyers are trained to be advocates of their client’s point of view, and, in most instances, identify with their cases. This can result in an overestimation of what is truly a “slam dunk” case. In the experience of most mediators, they are rare indeed.

 

Even if it is a “slam dunk,” why not mediate? If you can get the other side to believe you have a strong case, even privately without acknowledging that to you, he or she will undoubtedly want to avoid the risk of trial and may well propose a resolution that is acceptable. If that happens, you avoid the additional expense and time delay of a trial, and at least the theoretical risk that something could go awry when you put on your case.

 

You do not have to accept a settlement at mediation if you don’t like it, and you might learn something that will cause you to conclude it is not such a “slam dunk” after all. Even very strong cases should be mediated unless there is some other compelling reason for going to trial, like the need for a legal precedent.

 

Explain relationship cost of winning to the parties.

 

Don't want to show my hand of cards before trial

Why keep your case in your briefcase if you can use it to get a settlement on your terms without the cost, time delay, and risk of a trial? Lawyers in their zeal usually overestimate the impact that their “smoking gun” or bombshell information will have at trial. Sometimes there is a simple explanation, and the information is disclosed before the tribunal with what turns out to be a whimper, not a bang, anyway. Usually that information can be more effectively used in a mediation session. Perhaps the mediator can obtain a more generous settlement using the bombshell information because he can impress the other side with its possibly devastating effect at trial. Or he can tell you why he does not think it will make the impression you intend. Mediators will sometimes ask parties who give them such information to authorize disclosure to the other side because, if it holds up, it may induce a quick settlement. But the tactical decision on whether to disclose it or not always remains with the lawyer.

 

Both sides remain in control of what they disclose and what they keep to themselves, and what is said and when is up to them. You only have to show the part of your case you want to show, although it is usually helpful to get the mediator’s judgment on your entire case without holding back. Trial by ambush is increasingly looked on with disdain by tribunals, whether in court or arbitration, and the lawyer who withholds information runs the risk of it backfiring if the trier of fact thinks it should have been disclosed earlier.

 

A number of attorneys insist that the limited discovery common to mediated disputes weakens their ability to represent client interests. However, the flexibility of the process allows participants to interrupt an ongoing mediation at any time, resuming it when the required discovery is complete. In the unlikely event that the mediation fails, it often still has performed a service in focusing subsequent litigation by identifying key issues and supporting evidence, thereby reducing pretrial discovery costs.

 

Perception of Wasted Time and Money

This comment usually results from inexperience with the process. In most industries, where the parties come to the table voluntarily, mediations result in settlements in about 80% of the cases. Individual mediators have much higher records of success than that. So the probability is you will not waste your time.

 

In the relatively rare instances where the case in chief does not settle, the mediation helps refine the issues and resolve some matters that avoids the necessity of spending time and money on them later at trial. It also helps make the parties themselves more comfortable with the process, and more familiar with the strengths and weaknesses of their case, making the lawyer’s job easier when preparing for and conducting the trial. In those few cases that do not settle, the lawyers and the parties usually think it was worth the time and effort.

 

Too Far Apart

“Too Far Apart.” If you were to ask me for the main reason why people are reluctant to mediate, it would be the perception that the parties are “too far apart.” Or, “It would be a waste of time because the other side is so unreasonable.”

 

Whenever I hear these common refrains I try to point out that they are the very reasons why mediation is indicated. If the two sides were already close, then they would probably be able to settle the case on their own. It is precisely because they are so polarized that they need the intervention of a mediator.

 

Stories abound of cases that were thought to be hopeless but that still settled at mediation. Here is a lawyer’s comment that I read recently: "The parties have been in litigation with each other for years. All prior attempts at mediation had failed. In light of this unfortunate situation, I held little hope that mediation would work. I have rarely been so happy to have been so wrong."

 

In most of the cases that I mediate, we start the day with the two sides at opposite ends of the spectrum. Opinions about responsibility seem to be diametrically opposed. When numbers are put on the table, the initial offer sounds like a token response to the demand. But the trick is to keep talking because the longer that the parties talk the closer they will usually get to a solution.

 

Unreasonability

 

The case will not settle because the other side is unreasonable and will not listen until we get to the courthouse steps.

 

This comment is usually offered without knowing where the other side really stands on the matter. In most cases the parties and their counsel have not sat across the table for a full exchange of views, but have just exchanged curt phone calls. They certainly have not had the skills of an experienced mediator working in their behalf to get them together.

 

If you haven’t tried the mediation process, you can’t come to any reasonable conclusions as to the possible outcome. The mere fact that the other side may talk tough doesn’t mean anything if they are willing to participate in a voluntary mediation. Despite their rhetoric, attendance at mediation speaks volumes about their desire to get the matter resolved. But, as we have seen, it does not mean they necessarily think they have a weak case.

 

There is always the theoretical possibility that the other side will go through the motions in bad faith, just to try to find out more about your case. In the experience of most mediators, this is rare indeed. Once a mediator finds out that the modus operandi of a particular lawyer or client firm is to agree to mediation just to size the number at which they might be able to settle on the courthouse steps, most professional mediators will not work for them again. Most parties and counsel approach mediation in good faith and not with an intention to suborn the process. Statistics show a settlement is reached in the large majority of the cases, well before getting to the courthouse steps.

 

In other instances, attorneys may refuse to mediate as a tactic to prolong the litigation, making it more expensive and burdensome for their adversary. If you suspect the other attorney is failing to communicate your willingness to mediate, consider having your client contact the other party directly. No ethical boundaries are violated and communication channels may start to open that could expedite resolution.

 

Complexity of the Case

The case is too complex.

 

Perhaps a number of years ago, when mediation was just becoming accepted, this might have been a reasonable position. It surely is not today. Huge cases, in both dollars claimed and in number of parties involved, have been successfully resolved in mediation in many different industries. Occasionally more than one mediator is used, or sessions are spread out over a number of days, and issues are separated so they can be treated seperately.

 

Experienced mediators are not troubled by complexity because the process is eminently flexible. It is a tried-and-true method for settling both simple and complicated cases.

 

Financial Gain For Attorney - It's all about the Money

 

I have to spend the time preparing for trial, and at trial I have the best chance of getting a good award for my client and maximizing my billable hours. 

 

Some people point to the inherent conflict of interest attorneys face when recommending mediation. Billable hours are the lifeblood of many lawyers and mediation frequently stops the clock by substantially limiting the discovery process. The situation becomes even more complex in multiple-party disputes, where one attorney pushing for mediation can affect the income of other attorneys. Ultimately, though, lawyers who put client interests ahead of their own will be rewarded with client loyalty and future business. Many attorneys now believe they have an ethical ­ if not legal ­ responsibility to at least apprise clients of all their options.

 

Preparation for mediation is almost identical to preparation for trial.  It will ultimately save time in getting ready for trial in the rare instance where it does not resolve in mediation.

 

You will have more clients and be able to do more productive work in your office if you get a reputation as a lawyer who effectively employs mediation as a resource. The results might not be much different from what you would have gotten in court, but without the time delay, trial cost, and risk of an unacceptable result. It is better for both your clients and you, and you will have more billable time available if you are able to clear you calendar of cases that do not have to be tried to get the best results for your client. You will be freed from the burdens of a trial, where you are subject to the whims of a tribunal as to time commitments and procedure.

 

Emotional Involvement

The parties (or the lawyers) are too emotionally involved to sit down together.

 

The attorneys may act as if they own the matter and this may have lead to Client dependancy, where the attorney controls the client and his/her action.

 

This is another red herring because the mediation process is designed to help people deal with their emotions. An experienced mediator will let the parties vent and thereafter help them develop some objectivity about their case, and will help the lawyers work with their clients. They all have to understand what is going to decide the case is not what happened, or even what is necessarily fair and just, but what the proof shows. The key is what the trier of fact is likely to believe happened, and the legal and equitable conclusions that he or they believe flow from that.

 

From time to time mediators run into situations where the lawyers have been entrenched in their positions for so long that they cannot be objective and keep their own emotions in check. Mediators can deal with that as well. 

 

While rare, I have personally handled situations where I have excluded the lawyers and resolved the matter dealing with the parties themselves, subject to the eventual approval of their counsel. Strong emotions are a usual part of most mediations, and the experienced mediator can diffuse them and redirect the energies of the parties toward a constructive outcome.

 

Day in Court

Parties may simply want their day in court.

 

They want to go for the jugular, not a compromise. They may perceive a judge as more neutral than a mediator. They may believe a "jury of their peers" will see things their way. Frequently, discussing the fact that most cases settle before trial and that they ­ not the judge or jury ­ will decide if the terms of a settlement are acceptable, will make these clients take a second look at mediation.

 

Attorneys decide it won't work or they decide their client does not want to

The attorney has  a responsibility to convince yhis/her our clients that it is in their interest to mediate. In most cases when they are hesitant, it is because they are unfamiliar with the process and are unwilling to pay your for your time and the mediator’s time to prepare for and attend a mediation. This is not as much of a problem where the counsel is being compensated on a contingency basis. It is up to you to show them it will be time well spent, that success is usual, and that even if the case is not entirely resolved, it will be a good use of the time and money to make the effort.

 

You should point out that in a mediation a creative solution that meets the needs of the parties is possible, while a tribunal is limited in most cases to an award expressed in dollars and cents. In mediation, the imaginations of the parties and the mediator are the only barriers to resolution, and money may only be part of an ultimate settlement. The mediation process can dig beneath and go well beyond the issues on the table to fashion a result that both sides will accept, without something unreasonable to either being imposed by a court or panel.

 

Explain the ethical obligation to disclose process and legal obligation to mediate in terms of the Children’s Act: Section 6(4), 7(n) and 33(2-5)

 

Top Reason

I can do it better! Arrogance and lack of trust.

 

Frequently, the major hangup to mediating a dispute arises not from other parties to the dispute, but from their attorneys. Many simply do not understand the process of mediation ­ what it is, how it works, how much it costs and how long it takes. They may also have questions about how to prepare for mediation and the extent to which their client is involved. These concerns can be readily addressed by contacting a mediation service, which should be well-equipped to handle such inquiries. Because costs, administrative support services, location and approach to mediation vary among alternative dispute resolution providers, it is a good idea to contact several before selecting one that meets your needs.

 

Attorneys are a proud bunch, and they fancy themselves to be astute negotiators under any and all circumstances. 

 

Why do you have to pay a mediator to do what you can do yourself?

 

The easy answer is because you cannot do it as effectively as a neutral mediator who has no stake in the outcome, and commands the trust and respect of both parties. While you may not be as close to your case as your client, if you have lived with it for a while, it is difficult being truly objective. We learn to be advocates in law school and because of that, whether we want to recognize it or not, we tend to develop a position that is tough to change. The old saw that a lawyer who represents himself has a fool for a client applies here to some degree.

 

A trained mediator will help your client and you see the strengths and weaknesses of your case, and will help you both be more realistic as to the probable outcome if it goes to trial. Also, a trained mediator acting as go-between can take a “devil’s advocate” position with both sides and present your arguments more effectively than you can, because he will not be perceived, as you will, as an adversary who is positioning to sell a point of view. You cannot do it better yourself.

 

Solutions

Proper explanation of the process:

  • |  How it works
  • |  Costs
  • |  Time
  • |  Effect on their pocket

 

Mechanisms:

  • |  Documents and intake procedures – giving detailed information 
  • |  Word of mouth
  • |  Educational talks

 

Trust Issues:

  • |  Compile and attach a detailed resume/CV describing training and experience with similar matters. 
  • |  Add a list of references.
  • |  Build and protect your reputatation
  • |  Invite attorneys to sit in during sessions and acquire working knowlegde of mediation
  • |  Become part of their process and quotations
  • |  Add value to their service
  • |  Become part of their processes
  • |  Utilise a Referral Sytem

 

Become a specialist and develop a niche market and use word of mouth support and marketing

Dealing with suspiscion on the choice of mediation

  • |  Who chose you? Who appointed you?
  • |  Emphasise neutrality and reputation
  • |  Ensure neatrality in processess don’t consult seperately and use standard documents

 

Take attorneys on and  keep them accountable:  in e-mail, correspondence and conversations

  • |  Educate them on the Children’s Act requirements
  • |  Section 6(4), 7(n) and 33(2-5)
  • |  Brownlee matter
  • |  MB v NB
  • |  Create Precedent in your own court

 

  • |  Don’t aggrevate
  • |  Add value

 

  • |  Explain Family advocate and magistrate requirements
  • |  Community project training mediators offering pro bono work

 

Best of luck

Melanie van Aswegen

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