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When Not Everyone Wants Mediation

July 8, 2012

Mediation is a voluntary process of dispute resolution.  This does not mean that everyone at mediation will choose to settle his or her dispute, but at least each person who attends does so, willingly or reluctantly, to see what happens.

Sometimes, however, this is not the case and people won’t even show up.

More specifically, some people will not even consent to mediate even if the court or the attorneys recommend mediation.

Some people feel so strongly – that they must have “Justice (with a capital ‘J’)” –  that mediation is not a good idea for them.

Or, because of our sluggish economy where money is so tight, people are less flexible about their money – either to discount the chance of a big win or to pay up a big sum early when they might not otherwise have to pay a judgment at all.

Elizabeth Allen White, Judge of the Los Angeles Superior Court, once wrote:

“Mediation may not be effective if a party is unwilling to cooperate or compromise….”

(See Judge White’s article reviewing the Los Angeles Superior Court’s ADR program in the January 2011 edition (pp. 9-10) of the San Fernando Valley Bar Association’s monthly publication, available at
https://www.sfvba.org/UserFiles/File/Valley%20Lawyer/2011/VL%20Jan%20low%20res.pdf)

In light of the more recent fiscal crisis of the Los Angeles Superior Court, by way of example, with the resulting delays in getting to trial, one would think litigants would more readily accept the recommendation to participate in mediation if made by the court or counsel, on the theory that “justice delayed is justice denied.”

The opposite appears to be true, still, at least in those cases (a) where the litigants will accept nothing less than the chance to prove they are “right” via trial and to receive either damages on the one hand or vindication on the other, or (b) for economic reasons they feel they must “roll the dice” and can take or do no less.

About one-third of the mediations assigned by the court to this writer via various mediator panels never actually convene (result in a mediation session). Some cases settle beforehand, some cases end because of a dispositive motion prior to mediation.  A good many do not convene because the parties never could agree to mediate at all despite indications to the contrary in court.

For the side willing to mediate and settle, this can be frustrating and appears counter-productive.

However, self-determination is key to mediation, and one must even accept the prospect that parties ultimately may choose not to mediate, or may withdraw their consent to mediate, in some cases.

In many cases, this does not mean that the case will not settle ultimately; more than ninety percent do settle.  Courts still offer Voluntary or Mandatory Settlement Conferences, and lawyers still can try to resolve their clients’ cases with each other by telephone as in the old days.

It just means that process of mediation, or its timing, isn’t right for everyone, even if the court or counsel want it.

The ultimate dispute resolution process is trial (as opposed to dueling or jousting in past times), and some people simply need trial to be satisfied.

Still, it can be a disappointment to others that some won’t mediate.

Conflict is full of disappointments and not everyone is ready for peace at the same time (or sometimes at all).

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From → Mediation

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