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Mediation - What are your thoughts?

What kinds of disputes are not suitable or amenable to resolution using mediation?

Please provide your thoughts/comments below.

Comments (6)

1. Cases in which trust is high and communications are so good that direct negotiations can be expected to produce satisfactory results.
2. Cases in which parties are seeking an interpretation of law.
3. Civil rights and Bill of Rights cases where court precedent is required to establish a national standard, eg. voting rights, free speech, Roe v. Wade, affirmative action, etc.
4. Mass tort or products liability cases where liability has not been established, eg. until a court held that smoking causes lung cancer, it made no sense for the tobacco companies to resolve cases. A case had to be lost for the "finger in the dam" to no longer work, and then all subsequent cases should be mediated.
5. Cases where delay and cost run so heavily in favor one one side that there is no advantage to diverting this bargaining power into a negotiated resolution. There are cases where delay and cost run heavily in favor of one party, i.e. the longer it takes to get to trial and the more costly it is to one party (but not the other), the more likely it favors the party with staying power to stay in court. The party without staying power is more likely to fold or to settle for modest sums. This is cynical, but probably the advice a zealous advocate would give the client with staying power.
6. Cases not ripe for mediation, i.e. where economic losses are continuing, or personal injuries must stabilize, before settlement possibilities can be evaluated. Also, cases where no discovery has been done and there is little certainty about the facts that can be established.
7. Criminal cases, because the State has an interest in punishment, unless restorative justice principles can be applied in misdemeanor cases involving neighbors or members of a community.
8. Cases which have no legal merit or where the plaintiff is known as a repeat player or vexatious litigant.
Judith Meyer

Richard Lutringer:

Mediation, in its most general sense, means the facilitation by a neutral third party of the negotiation of the settlement of a dispute between two or more persons.
Even those disputes involving public policy, such as voting issues that require public judicial action, settlement of estate issues involving non-present parties, or those involving issues reserved constitutionally for legislative bodies, can benefit from the adverse parties mediating nonsubstantive issues defining the precise issue to be resolved or evidence to be presented at the designated formal process.
As to civil litigation, I don’t think there is any issue that couldn’t be either resolved, clarified or made easier to settle through mediation.

Carlos J Bianchi:

Mediation is much more difficult than arbitration. In arbitration you are the boss. In mediation, the parties can generally walk away if they so choose. The key to mediation is to establish a relationship of trust with the parties.

Deanne Wilson:

While I generally agree that there are few civil cases that are not suitable for mediation, at least as a first pass, there area few exceptions. One of those exceptions is the case in which counsel is attempting to educate the client on the weak points of the case--and the client repeatedly, again and again, says, "Yes, but..." At some point, counsel should reflect on whether the client has any flexibility at all because some flexibility is needed in mediation. Even at that, the parties may nonetheless agree to mediation; but in that case, counsel should be on the lookout for the constant, "Yes, but..." There may come a point when mediation has to cease, at least for the near future. Indeed, if every case is a viable candidate for a successful mediation, there would be no need for the arbitration process...

Any dispute can use mediation to help the parties resolve it. Some cases, such as those with an element of violence, may need extra precautions. The parties are not obligated to agree on anything.

Dennis Estis:

This may go against the norm, but I have found that disputes between large companies and consumers (not class actions) are usually a waste of time since the consumer is not represented by counsel and either assumes that the mediator is in the large company's pocket or that the mediator is obligated to provide legal advice to the consumer. With regard to the former, the consumer will assume that he/ she cannot get a fair deal. They are better off having direct negotiations.

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