When is Mediation Not Right?

by Jacqui Brauman

When is Mediation Not Right?

by Jacqui Brauman

by Jacqui Brauman

I’m a big advocate for mediation – but when is mediation not right?

I think that it really should be utilised as early as possible. 

Jump into mediation when you can, even just to have a facilitated conversation, because the earlier you have some of these hard conversations with someone to help you, often the better – so it doesn’t escalate.

Even though I think mediation is brilliant (and it does depend on the mediator that you get) there are three main situations where a mediation may not be suitable.

Domestic violence

It’s a generalisation to say all domestic violence situations cannot be mediated, because they can. Some may not be suitable, though.

There are very experienced mediators that you can utilise. There are people that can do it online so that you remove the physical safety issue. But also there is a process where a mediator could do a shuttle mediation, so you’re not even having to look at the person’s face on a Zoom screen. 

If there is a history of domestic violence, make sure you find the right mediator. Then it can still work.

Mental health problems

If one of the parties has some kind of personality disorder, or they are having delusions, doing a mediation may be really difficult. 

Again, not a generalisation that it can’t be done. There are very experienced mediators out there that could potentially manage the situation, even if it’s broken down across two or three mediations. 

But the problem is: to commit to mediation, you need to agree to confidentiality, but you also need to agree to participate voluntarily in the process. Meaning that you have an understanding of what the process is and that you’ll actually fully engage and try to resolve a matter. Whereas when people have a mental health problem, they may not be able to agree to those things or to hold the commitment. 

Complex facts

The third is just if the factual situation is quite complex and you don’t have all the information. 

Mediation may be right once you have all the information, but until you have it, doing it may just be a waste of time. 

What you can do in that situation is break the mediation down into two or three stages. You can have a 90-minute mediation, and agree to exchange all this information. Once we have all that, we’ll have the second one and you have a timeframe set around getting all that information to each other. 

To do mediation, the earlier the better. 

Find the right mediator, do an intake, talk about any problems, see if they can be overcome and give yourself over to the process.

Trust that in a confidential situation, saying the things you need to say when they’re facilitated by someone to help you say them, can actually make your situation heard and understood.

Mediation also narrows quite a few of the issues down. Some creative solutions can even come up for each of the disputed issued.

Legally Wise Women

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