Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that the following types of disputes or circumstances make mediation less desirable:
· The party needs to establish binding precedent;
· The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Walmart strategy);
· The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB;
· The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award;
· The parties are embroiled in a value-based conflict on which they see no room for compromise;
· The party will not be effectively represented in mediation, either because he or she is unrepresented or represented by inexperienced or unskillful counsel;
· One or more parties refuses to participate in good faith in the process; or
· The parties cannot bring into the process one or more persons essential to a resolution.
I would add to this list disputes in which:
· A party seeks retribution; or,
· A weaker party needs the power of the court or of law to balance a significant imbalance of power or resources.
The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not considered appropriate:
· When a party victimizes the other party;
· When alcohol or drug abuse plays a significant role in the dispute or undermines a party’s ability to effectively participate in the mediation;
· When only a court can offer a remedy to the dispute, especially in matters of first impression or those matters requiring injunctive relief; or,
· When relationships cannot be healed.
I would challenge two components of this last list.
While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses. One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses. After her experience in the
system, in which a judge openly expressed his bias against her, she preferred a
process giving her more control, especially, over the outcome.
I also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children).
As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process. Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.