Making a responsible choice
Mediation can be a good option in all conflicts in which both parties want to reach a communal solution. During the intake for mediation it is explored whether indeed mediation is a viable option.
Choice drivers pro mediation
- willingness to negotiate – among parties as well as lawyers
- pace of the process
- control over the process and solution
- tailor-made solutions
- the legal framework does not address the underlying problem
- commercial interests can be taken into account
- the process is focused on the future rather than on the past
- mutual future interest can be taken into account
- legal process fatigue
- the desire to continue of the relationship or end a long-term relationship (family, neighbors, business relationships, business partnerships, long-term contracts) in a careful and respectful way
- multiple procedures or multiple conflicts between the same parties
- interest in confidentiality of the process
- the option of private discussions with the mediator (caucus)
- third party interests: more parties are involved than the disputants alone
- the necessity of a durable, sustainable solution
- cost savings
- compliance
Choice drivers against mediation
- no room for negotiation (note: the room for negotiation is often underestimated)
- highly escalation of the conflict
- previous mediation has failed
- a judicial ruling (precedent) is desired
- a public ruling is desired
- impending period of limitation/ preemptory time limit
- severe power imbalance between the parties
- the cultural background of parties is incompatible with mediation
- interest in delaying the process
- interest in exploring the legal ramifications of the case ("fishing expedition”)
- pleasing the referrer
- mediation is considered as a sign of weakness
For more information see Pel 2008 , Referral to Mediation, Chapter 3 ‘The referral interview: a multi-step plan’
