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Getting the Other Side to the Mediation Table by Peter Lovenheim
Copyright © Nolo Press

• How a Mediation Service Overcomes Resistance

Mediation may sound to you like a good, sensible way to resolve a dispute. But what if you're also convinced that your opponent is not sensible, and is determined to prolong the dispute or fight things out in court? The good news is that with a little help, you can probably get even an obstinate neighbor, a quarrelsome ex-spouse or an unresponsive business owner to mediate.

If you've been ordered into mediation by a court--many family law and small claims courts send people to mediation before allowing them in a courtroom--or because the terms of a contract require it when a dispute arises over the contract, there is usually little difficulty getting the other side into the mediation room.

But most often, if you get embroiled in a serious dispute there will be no court to prod you into mediation. If you want to mediate, it will be up to you to get the process started.

Unless you know for a fact that the other side is willing to mediate, expect some reluctance. If the dispute has gone very far, the other person may almost automatically oppose anything you propose. Although you may be able to break through this resistance easily, sometimes it may not look promising. What then?

The best way to coax a recalcitrant party to mediate is to do it indirectly. Have a mediation organization--not you--extend the invitation to mediate. This means your first step is to find a mediation organization that is appropriate for your dispute. (Although individuals also offer mediation services, organizations are generally more skilled at getting people to the negotiating table.) For neighborhood and personal disputes, community mediation boards are usually appropriate. For divorce and business disputes, you can usually find organizations in the yellow pages devoted to these specialties.

After you find one or two organizations, call them and explain your situation. If one of them seems to be a good choice to work with you to get the mediation started, the next step is to write a short, polite letter to the other side explaining that you want to mediate and will be contacting a mediation service. Avoid saying anything that is likely to trigger a defensive response. Here are some suggestions:

• State that you would like to try mediation and list some reasons why--for example, because it's an efficient, low cost, no-risk approach.
• Do not try to persuade the other person to mediate. Leave it to the mediation organization to do the selling.
• Never threaten the other person. For example, do not write, "If you don't agree to mediation, I will have no recourse but to commence a lawsuit."
• State clearly that you have no personal connection with the mediation organization other than contacting it for this mediation.
• Let the other person know that the mediation service will be calling.

How a Mediation Service Overcomes Resistance

Once you tell the mediation organization to go ahead, it most likely will send a letter and supporting materials to the other side, emphasizing the benefits of mediation, including low cost, privacy and speed. If you use a private mediation company, the letter will also likely point out the high quality of the people on their mediation panels, the simplicity of the process and competitive pricing.

If the mediation organization doesn't get a response to this initial mailing within a week or two, a staff person, often called a "case manager" or "case coordinator," will usually follow up with a phone call to answer the other side's questions about mediation and review mediation's potential benefits. If the other side declines to participate based on a lawyer's advice, the staffer may ask permission to call the lawyer directly to be sure the lawyer understands mediation.

Before long, the case manager may report good news: the other side is willing and ready to mediate. If so, the two of you can select a mediator and schedule the mediation.

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• How to Mediate Your Dispute

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