15 Objections to Mediation and Suggested Responses
by Sam Imperati
Introduction
The Mission of the Washington Mediation Association is to “advance the use of mediation as an effective form of dispute resolution, foster high standards of mediator conduct, train and certify members, and to be the voice of mediators in Washington State.”
In furtherance of that mission, this post provides a template for you to craft your unique responses to the 15 common objections to mediation. It contains working concepts – not doctrine. Edit away, and happy meditating!
Passionate about mediation, please get in touch with admin@washingtonmediation.org to learn about the many opportunities to help achieve our Vision to be “the premier network of mediation providers and the foremost promoter of mediation in Washington State.”
Thank you for being part of the WMA Community!
- Mediation Won’t Work for My Situation.
Mediation has proven effective in various disputes, from personal relationships to complex business conflicts. A skilled mediator can tailor the process to your specific needs and circumstances. Parties often want and need a “resolution,” not just a “settlement” where they walk away with begrudging acceptance.
- It’s Too Expensive.
Mediation is generally more cost-effective than litigation. It often requires fewer hours and resources, leading to lower overall expenses. Additionally, the collaborative nature of mediation can preserve relationships and prevent future conflicts, potentially saving money in the long run.
- I Don’t Trust the Other Party.
Trust can be a barrier, but mediation provides a structured environment where a neutral third party helps facilitate communication and ensures both sides are heard fairly. The mediator’s role is to build trust in the process, even if there is a lack of trust between the parties at the beginning.
- We’re Too Far Apart to Reach an Agreement.
Mediation is designed to help parties find common ground. Even if you start with very different positions, the mediator can help uncover underlying interests and explore creative solutions that might not have been considered.
- I Don’t Want to Compromise.
Mediation doesn’t force you to compromise on your core values or needs. Instead, it encourages a collaborative approach to finding mutually beneficial solutions. You remain in control of the outcome and are not required to agree to anything you find unacceptable. Discussing ways to meet your needs or values, rather than just the surface issues, often opens the door to outside-the-box solutions that don’t involve compromise.
- I Prefer a Formal Legal Process.
While litigation may seem more authoritative, it often leads to win-lose outcomes and is frequently unnecessarily adversarial. Mediation offers a confidential, less formal alternative that focuses on collaboration and can lead to more satisfactory and sustainable agreements.
- The Other Party Won’t Agree to Mediate.
It’s common for one party to be hesitant. However, explaining the benefits of mediation to them, such as cost savings, time efficiency, improvement in communication, and the opportunity for a more personalized resolution, can often persuade them to participate. Sometimes, a suggestion from a trusted neutral or advisor can also help.
- I’ve Heard Mediators Can Be Biased.
Professional mediators are trained to remain impartial and facilitate a fair process. If you have concerns about bias, you can choose a mediator with a strong reputation for impartiality or agree with the other party on a particular mediator.
- I’m Afraid the Other Party Will Take Advantage of Me.
The mediator’s role is to create a balanced environment where both parties can express their views and concerns equally. The process is designed to prevent one party from dominating and to ensure a fair negotiation.
- We Have Already Tried to Resolve This Ourselves – Mediation Would Be a Waste of Time.
Facilitative mediators can “reframe” interests, concerns, and positions, often leading to shifts in thinking that result in a “resolution.” Evaluative mediators can act as “agents of reality,” providing an independent perspective that can be therapeutic, even though mediation is not therapy. This approach can lead to a “settlement.” Mediators explain their approach(es) so you can self-determine what works best for you.
- What Good is a Non-Binding Process When We Need a Done Deal?
Negotiations are always non-binding until there is an agreement. The vast majority of mediations result in binding and enforceable contracts. Agreements reached through mediation typically produce greater satisfaction than court-imposed decisions, and compliance with voluntary agreements is higher than judgments imposed by a judge or jury.
- We Think the Other Side is Unreasonable and on a “Fishing Expedition” for Information.
Conflicts would already be resolved if the other side were reasonable. Maintaining an unreasonable position in correspondence and legal pleadings is easy but more difficult during a face-to-face, detailed case analysis with a seasoned mediator. Because the process is voluntary, you do not have to produce anything at mediation, even if it is subsequently discoverable. Mediators are skilled at facilitating appropriate information exchanges to “jump-start” negotiations. Finally, ground rules like “good faith” are agreed to at the beginning of mediation so everyone has clear expectations on appropriate behavior and how the process will work.
- It is Too Early to Mediate; We Haven’t Done Enough Legal Discovery.
You only need sufficient information to assess risk and analyze options reasonably. If mediation seems premature, you may raise this issue with the mediator, who can facilitate the exchange of documents before, during, and after the mediation. Mediation allows parties to explore their underlying needs, work on settlement options, and not debate positions.
- Why Should We Mediate When We Can Go to a Hearing or Trial?
Unlike a hearing or trial, mediation allows you to maintain control of the process and outcome. Even if your case does not settle, the issues will be streamlined for adjudication, and you will better understand the entire case.
[Thanks to WMA Board Secretary, Felicia Staub, for insights and editing assistance!]