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Factors that determine whether mediation will be effective, Pt. 1

As anyone who has read this blog in the past is probably well aware, there are many situations in which mediation may be a good way to resolve an issue. That said, not every dispute is right for the process. This may be true for a variety of reasons. In the next two posts we will discuss some of the factors that make mediation either a good or bad option. In this post we will cover situations in which it might not be the best way to go.

The first factor that if present might mean mediation is not a good option is when one, or both, of the parties is not inclined to make the necessary allowances to reach a settlement. This situation in particular might arise when parties are required to mediate before they can take the matter to court.

Mediation may also not be successful in situations where there is a misunderstanding of either the law, or facts about the disputed matter. While it is an attorney’s job to understand how the laws work, both the lawyer and his or her client should make sure that they know all of the facts about the case. When this does not happen the process can break down.

The egos of the parties involved can also have a bearing on whether mediation is the right choice. In situations where a party lets his or her ego get in the way, it is more likely that he or she will want to win at all costs and not be open to any sort of compromise.

Expectations that are not realistic can be problematic where mediation is concerned. Here again, a party must be able to get beyond the sentiment of being the only one who is right, so that they can start to work toward a settlement.

Not being in the same room could also hinder the chances of reaching an agreement.

While mediations conducted via videoconference or telephone can be successful, the lack of direct connection when it is not handled in person could make a party less likely to agree to a settlement.

In our next post we will focus on factors that when present, could indicate a more likely chance for mediation to work.

Source: Mediate, “Minimizing the Litigation Risk in Mediation,” Benjamin Seigel, July 2014

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