Why People Decline Mediation

Many people who have been involved in mediation for years talk and write about its advantages — and I certainly have been one of them. We have become so convinced of the advantages that we are sometimes taken back by people who refuse to mediate. Over the years I have found that many who refuse share common reasons and misunderstandings. I’ve listed the most common reasons I’ve heard:?

1 – “I know I’m right and any judge will see that I’m right.” Two thoughts come to my mind when I hear this. First, it’s not unusual for the other side to say much the same thing. Both parties typically believe they are right or they probably wouldn’t be contesting one another. Second, I often check on what happened to those cases that refused mediation and went to court. Let’s just say that even people who believe they are right can lose.?

2 – “I don’t want to settle.” Why would anyone not want to settle their dispute? I have mediated court referred disputes where one party was not willing to settle. In a confidential caucus the party told me that their objective in suing the other party was simply to cause them distress and expense. They had no intention of settling, and, in fact, used mediation to cause even more problems for the other party.

3 – “Mediation is a waste of time.”??Typically, people who say this do not understand the process and have not had any experience with mediation. Many people simply don’t know what mediation is. Some years ago, one of my students did informal polling in grocery store check- out lines, simply asking the person in line if they had ever heard of mediation. The most frequent answer was that it had to do with child custody. And more than one said “it’s where you close your eyes and sit quietly.” Various studies report that 60% to 80% of voluntary mediations result in agreements. And even if the parties did not reach a formal agreement, the parties reached a clearer understanding of the issues and possible resolutions of their dispute, which may have lead to later reconciliations.

4 – “Agreeing to mediate shows you are weak and/or have a weak case.” I find this “reason” the most frustrating to deal with. Somehow the person has equated working with the other party to find a mutually acceptable agreement as being weak and continuing confrontational bargaining and litigation as being strong. Working together to reach an agreement can be hard work and requires strength from both parties. Mediation is not always easy. I’m not sure how needless and expensive continuation of confrontation in any way is a marker of strength.

5 – “I’m at a disadvantage because the other party is more experienced/a better negotiator/better speaker than I am.” This final reason can certainly be legitimate. As a conflict develops between parties, one party can feel at a disadvantage to the other for any number of reasons and simply don’t want to be in another situation where they experience those feelings again. Actually, mediation is exactly the situation those people should want. Mediators are experienced in “leveling the playing field.” As a neutral party they manage the process so one party cannot use the mediation to in any way disadvantage the other party.

People who decline the opportunity to mediate have reasons and as mediation becomes ever more available, those reasons should be directly addressed.

https://www.mediatorfred.com