But Is Your Case Really Ready for Mediation (Part II)
In this second of three posts, we continue our look at the ADR Suitability Guide published by the International Institute for Conflict Prevention & Resolution. Its second factor examines the suitability of the dispute for a problem solving process, such as mediation.
The Parties Capacity for Problem Solving
To what extent are matters of fundamental principle at stake? If a party has place a stake in the ground, standing on principle, it’s generally not indicative of someone who is willing to compromise. Resolution is viewed a singular act – capitulation by the other side to the principle.
How important to the parties is the securing of public vindication? Mediation is a private and confidential process. If a party want to appear vindicated in the public eye, the last thing that pary probably wants is a private resolution process.
How certain are the parties that they will prevail in court/arbitration? If one of the parties is absolutely and utterly convinced that victory will be had in court, why bother mediating?
The Quality of the Parties Relationship
What is the emotional climate between the parties? Parties that have highly animose relationships tend not to want to negotiate with each other … at least in good faith.
What is the relative power (financial or business sophistication) between the parties? David & Goliath positions – where one is powerful and the other is weak – tend to prevent parties from being willing to engage in meaningful discussions, unless there is some other factor in play that can compensate.
How compatible are the styles of the attorneys? When the attorneys mix like oil and water, it’s very difficult to get any forward progress that is not the product of an order by a judge or arbitrator.
Practical Realities
Do the parties have the wherewithal to be creative when devising a resolution? If resources (tangible or intangible) are limited or non-existent, then the ability to be creative is drastically restrained.
Is this a dispute that involves critical areas of a managerial responsibility? It’s not unusual for corporate leadership, particularly in high stakes disputes, tend to reject negotiation when it comes to fundamental issues of managerial prerogative.
What is the stance towards mediation in the jurisdiction? Some jurisdictions tend to be very mediation friendly, some are not. That stance can affect whether or not mediation is seen as a viable tool to resolving issues.
