When to mediate

Mediation cannot solve all legal disputes, but it can be helpful in most cases. Although there are no rules about what can or cannot be mediated, mediation is more appropriate in some situations than others.

Consider mediation when:

• There is an issue in dispute
• All parties to the dispute are willing to meet and try to settle it
• The parties have some trust in each other
• Parties want a flexible and informal process
• No party can ignore the problem
• The power balance between the parties is fairly equal
• Other options for resolving the dispute are too expensive or too slow
• All parties have an interest in maintaining a relationship after the dispute ends
• The case requires a creative solution
• The parties would prefer to settle the dispute in private

The earlier a dispute goes to mediation, the more likely it can be settled. The longer people are involved in disputes, the more they become committed to their positions and are less willing to consider other points of view.

Mediation is probably not appropriate when:

• There is fear of violence or abuse between any of the parties
• The case is genuinely frivolous or opportunistic
• A party is acting in bad faith (for example, wants to use the process for delay only or to try to avoid disclosure of relevant information)
• The parties to the dispute do not have the power to change things or to resolve the problem
• Any of the parties are unwilling to consider working toward compromise
• A party is challenging a law
• A legal precedent is needed to govern similar cases in the future
• People not involved in the dispute might be prejudiced by the outcome
• The issue is one that should be debated in the public eye

Settlement rates in mediation are quite high and cases often settle even when parties are pessimistic about resolving the dispute outside of court.