When Is Mediation Not a Good Idea?
Mediation has many benefits, which is why it has become a popular form of dispute resolution for lawsuits. However, sometimes mediation may not be a good idea.
What Is Mediation?
Mediation is a process that may be voluntarily entered by the parties or required through a court order. The goal of mediation is to reach a mutually agreed-upon resolution to save the time and money required if the lawsuit goes to trial. During mediation, an impartial third party will be present to help guide the conversation and keep it cooperative rather than hostile and uncooperative.
Mediation is most successful when both parties can agree on what they are trying to accomplish and are willing to make some compromises. Conversely, when parties are unwilling to compromise, mediation will likely fail, and the lawsuit will end up at trial anyway.
Benefits of Mediation
Plaintiffs, defendants, and even judges tend to like mediation because there are many benefits to mediating a case. Mediation:
Saves time: Often, mediation can help parties reach an agreement in one or two sessions, each usually taking between three and four hours. This means that compensation can be obtained much sooner than if the case went to trial. For example, mediation can be conducted relatively soon after a lawsuit is filed. In contrast, a trial could take years and require many hours of discovery, investigation, and preparation.
Is comparatively inexpensive: Mediators will charge a fee that is generally divided between the parties unless there is a determination of indigency. When the parties agree to mediate their case, they will enter into an agreement with the mediator concerning compensation for their mediation work. Alternatively, when mediation is court-ordered, the mediator will be compensated $200 per hour plus mileage for the trip to the mediation. The parties will equally share the mediation expense. These costs are small compared to the cost of going to trial.
Allows confidential, informal conversations: The purpose of mediation is to encourage an informal and non-confrontational conversation between parties. Any communication that occurs at a mediation is confidential, with limited exceptions. Those exceptions include:
- Information covered by a waiver of confidentiality by all parties
- Information concerning the furtherance of a crime or concealment of ongoing criminal activity
- Information about professional malpractice for a professional malpractice proceeding
- Information about professional misconduct that happened during mediation
- Information in support of or refuting a settlement reached during mediation
Mediation confidentiality allows for honesty and openness, which can promote a higher success rate.
Conversations are not binding: Nothing said by the parties or suggested by the mediator is binding until a mutual agreement is written and signed by the parties. This allows parties to come to the table with an open mind and attempt to compromise because if a mutual resolution cannot be found, then nothing either party said at the mediation is binding.
When Should Mediation Be Avoided?
Mediation has various benefits, but that does not mean it is a good option for every dispute or party. Reasons not to attempt to mediate a case include:
Too much bitterness: If the parties are too bitter, mediation will not be successful because it will become an argument rather than a productive conversation. For example, if you cannot look at the other party without your blood boiling and wanting to tell them off, it’s probably not a good idea to try and sit down in a room with a mediator to reach a mutual agreement. Mediation only works if all parties are willing to work toward an amicable and positive resolution.
A party is acting in bad faith: For mediation to be successful, it requires that each party be open and honest about the case. If someone is acting in bad faith, mediation will not be successful.
The incident leading to the lawsuit involved malicious intent: While most personal injury claims result from someone else’s negligence, in some cases, they result from malicious intent. This means someone knowingly or intentionally injured another party through recklessness, maliciousness, or blatant disregard for human life. If an accident occurred because of someone’s malicious intent, you might be eligible for punitive damages, which can only be recovered during a trial.
Mental disability: If one party’s decision-making is impaired because of a mental disability, mediation may not be a good option because the mentally disabled individual may not understand the choices they agree to during mediation.
Contact Us at Goings Law Firm, LLC
If you were injured because of another person’s wrongdoing, contact the Columbia personal injury attorneys of Goings Law Firm, LLC today. Our experienced attorneys are here to fight for your best interests through negations, mediation, or trial.
Call us today at (803) 350-9230 or contact us online for a free consultation.