By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This is the fourth and final article in a four-part series on mediation alternatives.
Mediation is an incredibly useful tool and can be of great utility to disputants, but it has its limitations. Below are some of the best and worst characteristics of mediation, as compared with litigation and other types of alternative dispute resolution (ADR).
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The Advantages of Mediation
Advantages to mediation include:
1. Resource Efficiency – Mediation is far cheaper and less time-consuming than litigation. So to the extent that limitations of such resources are a factor, disputants will find this attribute appealing.
2. Relationship Maintenance and Conflict Resolution Efficacy – Mediation is, by nature, a process that requires a fair degree of cooperation and collaboration rather than competition and adversity. Because of this, mediation is much more likely than a lawsuit to mitigate hostility between the parties, preserve the quality of relationships, and arrive at a mutually acceptable outcome.
Mediation can head off any unnecessary escalation of tensions between the disputants. Even when hostility is already high, it’s unlikely to get any worse through mediation, provided of course that the parties can agree to undergo mediation in the first place.
3. Broad Scope – Whereas the courtroom can only address issues of legal actionability – matters for which a legal remedy is available – mediation proceedings are boundless. Disputants may discuss and reconcile personal conflicts as well as legal ones.
4. Addressing Dysfunctional Conflicts – Similarly, because much hostility in dispute proceedings can arise from how parties handle themselves, mediation is well-suited to address the interpersonal and dysfunctional types of conflict that detract from the material issues at hand. Typically, cooperation and collaboration between individuals tend to be highly promotive of successful accord and compromise. Social science research supports the suggestion that mediation be given a chance.
5. Perceived Control and Consent – One of the factors most closely correlated with healthy, successful compromise is a perception by the disputants that they each possess independent control to determine the outcome of the conflict. Because the outcome of mediation is never binding without the consent of all parties, this perceived control is maintained at all times.
Generally, disputants are more open to accepting an outcome if they feel that they agreed to it willingly, rather than having it forced upon them. In this sense, the consent and subsequent ownership of agreements between parties in mediation is a key advantage in any context.
6. Third-Party Constructive Influence – At times, the presence of a third party can help disputants move past the issues that prevented them from resolving the conflict on their own. The presentation of perspectives and ideas is received differently from a neutral third party than it is from the opposition. Mediators are also trained to spot potential avenues to compromise that disputants might not identify on their own.
The Disadvantages of Mediation
However, disadvantages to mediation include:
1. Lack of Guaranteed Finality – Although mediation may be more conducive to healthy compromise and reconciliation, it also leaves open the possibility that the disputants may not actually reconcile and the conflict may remain unresolved if an agreement can’t be reached. Although a trial will be more costly and adversarial, at least litigants know that the process won’t be an exercise in futility.
2. Lack of Guaranteed Relief – Even when disputants in a mediation proceeding manage to reach agreement, the settlement does not have the same force and effect as a case verdict. Settlement agreements amount to contracts under the law. If either party fails to fulfill his or her obligation, the other party must take the matter to court for enforcement and litigate a breach of contract claim.
3. Lack of Valuable Precedent – In the less common circumstances where a disputant has reason to anticipate multiple disputes of a similar nature – a class action situation, for example – mediation is a less favorable option. That is because it provides no precedent upon which other disputes may be resolved. Each individual dispute would need to be mediated separately.
4. Lack of Valuable Publicity – In some cases, public visibility of a dispute and its handling may advantage certain disputants. But in a private mediation environment any pressure from the public eye that might be applied in a trial setting is entirely absent.
5. Hostility Is a Deal Breaker – Unfortunately, often when a conflict has escalated sufficiently for parties to begin exploring legal remedies, it has risen to such a level that the parties lack the ability or desire to cooperate in any way with one another. So while mediation may be attractive for its good-hearted sense of collaboration, most disputes pass the point at which collaboration is possible well before the disputants consider mediation.
6. Still More Expensive Than Negotiation – Insofar as cost is concerned, mediation is unquestionably cheaper than litigation. But simple negotiation between the parties themselves is still cheaper (mediators are not free). And if either party lacks the funds or time to support the dispute resolution efforts, then mediation may unduly burden those who would otherwise prefer a cheaper and more expedient means of settlement.
7. Ego and Pride Can Get in the Way – All too often, the idea of concession or compromise evokes perceptions of weakness and admission of shortcoming. This can be another barrier to successful mediation.
Disputants who are subjected to mandatory mediation sometimes participate only to the extent required by the rules, with no actual intent of honestly trying to reconcile. This kind of disposition obviously undermines mediation efforts. If either party refuses to participate in mediation, then the process cannot move forward.
8. Third-Party Destructive Influence – A mediator may serve a constructive role in mending fences between parties that would otherwise never be addressed in court. But a mediator who is forced upon parties who are otherwise capable of negotiating on their own may just get in the way and antagonize matters.
9. Not Enough Time Due to Exigent Circumstances – At times, there may be exigent circumstances that require formal attention from a court of law for immediate redress. For example, if time is of the essence concerning an order of estoppel, mediation may only delay a needed court hearing and exacerbate frustrations.
Mediation can be a powerful and helpful dispute resolution tool, but it is not without its caveats. Disputants would do well to seek professional advice from a competent attorney to learn whether mediation would be the most beneficial approach for their situation’s unique circumstances.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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