Originally Posted on Mediation Works http://goo.gl/sokylX

When Is it Time for Mediation?

Is there a right time to enlist help of a mediator?  Is there are wrong time?  

Like any complicated matter, a conflict is unique in terms of its particular subject, the parties’ motivations, and the overall context.  So, decisions regarding how and when to attempt to resolve any specific conflict should be made in consideration of those attributes.  In some instances, like employment or contractual disputes, there may be a written policy or contractual provision which expressly identifies when mediation should occur.  In most cases, however, the decision is left to the parties and, if they have them, their representatives.

When faced with such a decision, a few basic considerations which may impact the question of when to mediate a conflict:

Future Relationship of the Parties:  if the conflicted parties are likely to be required to interact in the future (parents, family members, business partners) it may behoove the parties to mediate as quickly as possible.  The less time the parties spend engaged in conflict, the fewer angry words exchanged, the better chance to preserve a future relationship.

Inability to Communicate:  if the parties ability to have a productive conversation has been diminished or eliminated by anger  (I understand a fury in your words, but not the words.  Desdemona to Othello).  Mediation may be timely.  The presence of a mediator, and the ability to privately caucus, may offer the parties a method to have a constructive discussion that would otherwise not be possible.

Lack of Realistic Understanding.  If one, or both, the parties in a conflict are unwilling to acknowledge the realities implicated by the conflict (non-paying tenant won’t leave; party overvaluing claim), mediation may help.  A third-party view of the conflict may provide a reality check.  Appearances and positions do not always reflect the truth.  Parties to a conflict usually can’t resolve a dispute unless both sides share a realistic vision of possible outcomes. 

Appearance of Weakness.  There are occasions, especially in lawsuits, when the parties may have an interest in determining whether the decision to mediate might send a signal of lack of conviction in the merits of their claim or defense to the other side.  Serious consideration should be given to how a desire to mediate is expressed, and care should be taken to avoid creating an appearance of weakness.  In such instances, especially if involved in active litigation, it may be better to reference an external authority (court rules, policies, suggestion of judge) as the source of the desire to mediate.

There is no definitive answer to the question of when to mediate.  Think about the context of the conflict and determine whether the parties are effectively communicating.  Be mindful of the appearances and signals sent by a suggestion of mediation and whether a future relationship is likely.  Most of all, think hard about whether mediation could help.  If so, it is likely the right time to mediate.

For an in-depth discussion of the question of the timing of mediation, read Eelco Meerdink’s excellent article:  To Mediate or Not To Mediate?  http://goo.gl/VC87U5

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