By Paul Hutcheson
There is unquestionably a large gap between peoples’ satisfaction rates with mediation and with court-related processes. Research shows 75 percent-plus of users find mediation a satisfactory process whereas 90 percent of those who opt for court-related processes find them unsatisfactory. (In the 1990s one researcher, Arnold, made the salient observation that this 90 percent figure actually represented people who had received favourable decisions from the courts and yet still found the process unsatisfactory). For the users, litigation procedures are found to be highly dissatisfying from perspectives of anticipated outcome, expense and process.
However, when faced with some disputes, many people will still favour a court process and invariably harbour a number of definite reservations about using mediation. With the experience of 2000 mediations I have observed an overwhelming satisfaction rate from users of the process. Nevertheless peoples’ hesitations about mediation are very real and appear to be based upon the following:
- Expectation – Mediation means “giving up” on what’s really important to me!
In practice, the essence of mediation is about making considered and non-reactive decisions on precisely those things which are really significant to you and there is no compulsion to make a decision in mediation.
- Expectation – Mediation means the person in the wrong will escape a penalty.
In practice, mediation provides an effective forum for the consideration of alleged injustices and possible options for remedying them. If you remain unconvinced at the conclusion of the mediation and have not signed an agreement, other legal options are likely to remain available to you.
- Expectation – By taking part in mediation I will be signalling weakness.
In practice, all kinds of motives can be read into peoples’ actions and in my experience people who willingly participate in mediation are demonstrating a confidence in what they believe to be really important.
- Expectation – In mediation the result will go against me!
In practice any decision in mediation must be a joint one between yourself and the other party.
- Expectation – By participating in mediation I will be relinquishing my rights.
In practice people are free to leave a mediation without agreeing to anything and only a signed official mediation settlement affects your right to take the issue on to a tribunal or court-type process. A goal of mediation is to reach a good agreement and in some cases, no agreement is better than reaching one that is not in both parties’ best interests.
- Expectation – I will feel uncomfortable in mediation and may be verbally abused.
In practice while mediation is about robust discussions, the Mediator will monitor proceedings and provide balanced structure to the interaction. Mediation will be measurably less adversarial than a court process.
- Expectation – Mediation will be a waste of time!
In practice this is a possibility and if it happens it is the most likely disadvantage of participating in mediation.
- Expectation – I will do better in court.
In practice people in disputes, along with many of their legal advisers, invariably over-estimate their court chances and under-estimate their opponent’s case. You need to remember that with any court process, apart from uncertainties of outcome, there are other factors to consider regardless of success and failure. These include possible delays, stress associated with an adversarial situation, publicity and financial costs.