Mediator Tips
Responding to Concerns about Mediation

Because mediation is not as readily understood as litigation or even negotiation, it is understandable that clients often have concerns about the efficacy and value of mediation. Sometimes mediation seems like just another step in the legal process that only serves to delay getting a decision, or that it is a trick by one side of the disagreement to get what is owed to the other side. A mediator can convince more parties to attend mediation by responding to these concerns.

When asked whether mediation is any different from court, the obvious answer is that mediators don’t represent any side but are neutral facilitators. This is the point to stress, as the adversarial approach to litigation has become so ingrained into our culture’s psyche that alternatives are rarely, if ever, noticed. Mediation is also different than court because it allows clients to control the process themselves. They decide how much they want to discuss, they come up with the agreement, and they generate the options. If these two points are understood, it does not matter how much they know about the mediation process or how long mediation takes (although they might want to know that later), it is likely that they will be sold on mediation as a concept.

If asked about whether mediation works, and is worth the time, probably the best answer is to mention the success rate of about 90% and how even those who did not reach an agreement felt that mediation was useful. It would also be useful to mention how mediation does not require anything from the participant save his or her time. Given that participants can go to court if mediation does not work out, one has every reason to try mediation, especially if reaching a solution is what is most important.

Certain caveats do apply to mediation, such as the mediator being unable to give legal advice, but those can be covered before mediation begins. The benefits of mediation definitely outweigh the negatives, and by emphasizing the points above, it is likely that most people will agree.