Appropriate Mediation

Technically, the process of mediation can be used for just about any dispute that can be litigated in the traditional court system. While some cases go to mediation because of a judge referral, in other instances, mediation may be used as a pre-litigation process or because it has been stipulated in a contract. Although mediation can be used for a large variety of cases, some better suited for this form of alternative dispute resolution (ADR) than others.

When to Use Mediation

In general, mediation is most appropriate when the both of the disputing parties are willing to participate in the process and both want to reach a mutual agreement. Mediation does not involve binding legal outcomes determined by outside persons; it is simply a negotiation process. Mediation is also appropriate for:

• Cases plagued by poor communication: In these cases, a mediator can help bridge the communication gap by interpreting the wants and needs of each party. Similarly, mediators can help each side of the dispute work through prejudices, stereotypes or misinformation that may be hindering effective communication and progress towards finding a resolution.
• Cases with conflicting views of facts: When disputing parties hold conflicting views of the facts, a third party is needed to identify the relevant information from an unbiased point of view.
• Parties who want to avoid the distraction and expense of litigation: The process of litigation can be very time consuming and expensive, as disputing parties have to deal with court bureaucracies and need to pay lawyers'' fees. Cases that need to be dealt with easily and quickly, while still considering the desires of all parties involved, are better suited for mediation than the traditional court system.
• Parties who want to maintain confidentiality: With the mediation process, the disputing parties are able to keep trade secrets and other private or sensitive information confidential because the case is not presented to a judge or jury. Similarly, all outcomes of the process can be kept confidential, as resolutions aren''t matters of public record.

• Parties who want to maintain control over the outcome: A mediator does not make a final decision in a case. Instead, the mediation process encourages the disputing parties to come up with an agreement on their own. This allows parties, instead of arbitrators or judges, to control the resolutions of their disputes.

Some specific types of cases that are suitable for mediation are:

• business disputes
• conflicts over lease agreements
• divorce and custody issues
• employment issues, such as unfair work conditions
• will contests.

When Not to Use Mediation: Cases Inappropriate for Mediation

While mediation can be effective in many different circumstances, it is most effective when the parties involved are willing to cooperate. Situations that are less suitable for mediation include those in which:

• a party is seeking retribution or revenge
• parties harbor deep-set values, leaving minimal room for compromise
• parties are unable to find a good or suitable mediator
• persons essential to mediation do not want to participate in the process.

Without a knowledgeable, professional and unbiased mediator, parties risk being misrepresented in their case and will not get the most out of the process.

However, regardless of circumstance, if disputing parties are willing to work together, they will be able to make some adjustments to make mediation work. Having an open, positive state of mind, realistic expectations, patience and creativity are essential to getting through mediation successfully.

Even if mediation does not completely settle a dispute, it can improve communication and clarify the main issues. Improvements in these areas can help move parties towards a suitable resolution.

Resources

Allbusiness.com, Inc. (2008). Pros and Cons of Mediation. Retrieved on March, 10, 2008 from the Allbusiness.com Web site.

Young, Paula (2006). The What of Mediation: When Is Mediation the Right Process Choice? Retrieved on March 10, 2008, from the Mediate.com Web site.