Is medation suited to your dispute?


Given the huge benefits of mediation (see link below), the real question is why not use it?

But despite the benefits of mediation, there are some reasons why you should not use mediation.

If you are contemplating declining mediation, I advise that you discuss that with the intended mediator first. Your concerns may not be well founded, or can be addressed. Be careful about the well intended but misinformed advice that you might receive from others encouraging you not to attend mediation. It would be a pity if you to come to regret not attending mediation. It may be tough for you to attend mediation, but the alternatives may be worse.

Here are some reasons as to why not engage in mediation:

  1. Your physical or emotional safety cannot be assured.
  2. Your physical, mental or emotional health does not enable you to properly negotiate
  3. The physical, mental or emotional health of the other party does not enable them to properly negotiate.
  4. There are insuperable language difficulties, either on your part or that of the other party.
  5. The other party is not prepared to negotiate with you in good faith (but see the comments below).
  6. You have a disability which prevents you from properly negotiating.
  7. The other party has a disability which prevents them from negotiating properly.
  8. The matter is so urgent that you have to go immediately to court.
  9. You need to go to court to establish a precedent or to achieve some other benefit which only a court can provide.
  10. You are so overwhelmed or intimidated by the other party that you are unable to negotiate properly with them.

Be very careful about assuming that the other party will not negotiate with you in good faith, or predicting that agreement is impossible to achieve. Very surprising things can happen in mediation. Apply the maxim, nothing ventured, nothing gained. Usually, the worst that can happen in mediation is that agreement is not reached, in which case you are no worse off after the mediation than you were before you started it. Even when agreement is not reached at mediation the groundwork may be laid for later settlement.  But  a relatively high proportion of mediations do result in agreement.

It is often said that power imbalances and a history of domestic violence preclude mediation. The issues of power imbalances and domestic violence are important, complex and at times controversial issues: Power imbalances and domestic violence

The benefits of mediation