Disputes Less Suitable for Mediation
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 West
Virginia court
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.
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