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Getting the Other Side to the Mediation Table by
Copyright © Nolo
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
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
- 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
- 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
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
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
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