When is the right time to Mediate?
As early as possible!
After negotiation and before the first shot is fired!
Mediation should follow right after discussions, statements of positions, and failure to reach agreement.
Before the ‘Conflict Escalation Spiral’ starts.
The vast majority of litigated disputes are settled after costs of all sorts have been incurred. These may include time, disruption, money, and stress that often extends to personal life.
Once escalation starts, often with a lawyer’s letter, it takes on a life of its own in a tit-for-tat game that frequently changes focus from the original dispute, and produces new arguments.
Those ‘second tier’ quarrels generate further escalation that triggers yet more “investment” in terms of time, distraction, and expenditure,
So, if discussions and negotiations fail, Mediation, rather than legal action should be considered as the next step.
If these ‘second tier’ quarrels generate further escalation.
Conflict that becomes complicated by multiple issues triggers even more waste in terms of time, distraction, and expenditure.
It’s not easy to convince your opponent to enter Mediation.
Getting an angry counterpart to agree to Mediation is often a challenge. Information about this valuable resource is the best tool to raise awareness and prevent ‘lose/lose’ outcomes.
Useful information for your counterpart:
Most people have misconceptions of what Mediation really is.
Many understand it to be what Arbitration is – an adjudicative process in which disputants relinquish control over how settlement is reached.
Most people are unaware that Mediation is confidential, informal, and without prejudice. Most significantly, it is essentially a no-risk attempt at fast and cheap settlement that is successful in over 75% of cases – without relinquishing the option of litigation or arbitration if no agreement is reached.
Lawyers are sometimes up to speed, but certainly not in most cases. And sadly, adversarial methods are generally a first step rather than the final step.
A common fallacy is that Mediation is risky because it means revealing weaknesses, strategy, and tactics to the other side. That is just not true. It is the Mediator that needs sensitive information – which is done in private – to find settlement opportunities. (That is why Mediation works when negotiation fails.)
Mediators are privileged and bound by confidentiality and therefore parties are free to proceed to litigation or arbitration without having exposed delicate resources to the other side.
Mediation should always be pursued immediately after negotiation and never considered a show of weakness.
“Successful solutions are based on the powerful principle that resolution occurs by fostering the positive, not by attacking the negative… One basic principle has the power to resolve problems: Support the solution instead of attacking the suppose causes.”
– David Hawkins, from his book Power Vs. Force.