Mediation doesn’t work for everyone.

Many in today’s world think that every dispute should or could be resolved by mediation and in truth that may be the case but there can be challenges.

Black or White?

On the basis that normally mediation involves a degree of compromise, there can be situations where compromise isn’t an option. This can be when there are only two options and they are mutually exclusive. In these instances, mediation can be seen as impossible but maybe the mediation process might find a way or arrangement which whilst not solving the issue creates a way forward. Here a mediator might be looking for a dialogue to create a way forward that can work which may be say allowing one option to go ahead by accommodating something entirely different for the other party.

Class action?

When there are many similar cases parties may see mediation as a problematic way forward for individual cases as either side of the argument may be wishing to create a precedent that can be utilised to help settle similar cases. Here we have the conflict with mediation essentially being private but potentially parties wanting the case to be heard in a public arena – this is not dissimilar to:-

My day in Court!

There are those times when one party or both want ‘their day in Court’ and mediation to them seems an anathema – again the desire is for the case to be ‘heard’ possibly by a wide audience. Similar to the issue we often hear stated in medical cases ‘its not about compensation – I just don’t want this happening to someone else!’

In both the previous cases mediation can be made to work but only if the parties can agree that should a settlement be reached it will be made public.

The legal issue

There are times when a point of law needs to be tested and possibly clarified by a Court judgement. Here I think most would agree mediation cannot provide the solution but often the mediation route can narrow the issue down so the Court process can be significantly shortened. Certainly I, and I’m sure most mediators, can point to cases that at mediation have ‘settled’ with a variety of outcomes dependent upon a ruling on points of law.

An example I had recently was where there was a dispute and the parties had agreed most items except one small payment and responsibility for the payment was unclear. The liability was subject to a separate issue between other parties so in the mediation we agreed the amounts which had to be settled by the parties of the mediation dependent upon the outcome of the other case.

I would agree that Mediation does not work for everyone nor every case to reach a settlement but generally, the mediation process can assist in reaching a conclusion.

Jonathan Russell, Chartered Accountant and Accredited mediation, Hexagon Mediation