When is Mediation Not Appropriate?

  • 5 min read

‍Mediation is an excellent option for resolving disputes and other difficult situations. When compared with other dispute resolution methods, mediation is generally faster, cheaper, and less stressful. It’s also something that can be initiated by a neutral third party rather than the disputing parties themselves. We believe that mediation should be used whenever possible in order to resolve disputes without going to trial. However, there are some situations where mediation may not be the best course of action. If you’re dealing with any of these issues, you probably shouldn’t initiate a mediation process but rather seek a different form of conflict resolution: These five factors represent circumstances where mediation most likely isn’t a good idea:

There is a History of Failed Mediation Attempts

If you’ve already tried to mediate a dispute before only to have the mediation fail, you might want to think twice about trying mediation again. For example, if you have a business dispute with a customer that you’ve tried to resolve through mediation, but the customer was unsatisfied with the result, you’d probably want to think twice about trying mediation again. There are lots of reasons mediation may fail. Perhaps there’s a communication barrier that prevented a successful resolution. Or maybe the personalities involved clashed and the mediation didn’t go anywhere. It’s important to consider why the last mediation attempt failed. You might be able to take steps to prevent the same mistakes from happening again. If mediation failed the last time, you may want to try something else.

There is a History of Violence

Any situation involving violence is a bad candidate for mediation. Violence is something that a mediator doesn’t want to be dragged into. It can be a very messy and complicated situation that mediation is not designed to handle. Mediation is a discussion between two people in an attempt to reach a mutually agreed upon resolution. Violence is often not just one person attacking another, but two people clashing in an unproductive way. Mediation, where violence is involved, is usually not productive and may lead to further violence. A mediator has no control over the situation and may be at risk of injury if violence breaks out. This is why mediation is not a good choice for violent situations. In some cases, a mediator may be able to ask a party to leave the mediation session if violence is occurring. It’s important to know the policies of your mediator and their legal obligations.

Enforcement May be a Problem

If you’re mediating a dispute and it’s likely that the parties involved may not be able to enforce the resolution, mediation is not a good idea. A mediation resolution is not legally binding. It’s simply a promise that the disputing parties have agreed to. If they don’t keep their promise, there’s nothing anyone can do about it. It may be tempting to use mediation if you’re involved in a situation where you want the people involved to follow through on their promises. Or if you want to avoid the court system. But if the people involved can’t be trusted to follow through on their promises, the mediation session will be a waste of time. And you may end up regretting your decision to rely on mediation instead of litigation. Mediation is a great option for many types of disputes. But it’s not a good choice when the parties involved can’t be trusted to enforce any promises they make.

The Matter is Currently in Litigation

Mediation can’t be used if the matter is already being resolved in the court system. In most cases, mediation and litigation can’t be done simultaneously for the same dispute. If you try to initiate a mediation session for a matter that’s already in litigation, you may be accused of attempting to improperly influence the court or have your mediation session dismissed. If the matter is already in litigation, mediation is not a good idea. Instead, you should wait until the court system has resolved the dispute. You may be able to initiate mediation after a resolution is reached in the court system. However, you’ll need to be careful not to violate any rules or laws that may apply.

The Issue is Based on a Criminal Act (Ex. Assault, Theft, Fraud, etc.)

Mediation is generally not appropriate when the dispute involves a criminal act. A criminal matter is something that should be handled by law enforcement authorities. And if the law enforcement authorities are aware of the dispute, they’ll be monitoring any mediation sessions that may take place. Mediation is very different from a court proceeding. It’s basically a conversation between two people. A mediation session may end with an agreement between the parties. But there are no criminal consequences for failing to follow through on that agreement. That’s not the case with a court proceeding. When a court finds someone guilty, there are serious consequences for failing to follow the court’s orders.

Conclusion

Mediation is an excellent method for resolving disputes, but there are some situations where it’s not appropriate. If you’re dealing with any of these issues, you probably shouldn’t initiate a mediation process but rather seek a different form of conflict resolution. When you’re considering using mediation, make sure you’re aware of what mediation is, how it works and if it’s appropriate to your situation. With the right approach, mediation can be an excellent way to resolve disputes.

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