Why Refusing to Mediate Can Be Harmful Long Term
Credit: @priscilladupreez
Many parties refuse to mediate because they may not believe they did anything wrong, don’t want to cooperate with the other party, or want to stall the resolution process hoping the other party will go away, or for some other reason. Often, these views of the situation can set a party up for hardships. Here’s a look at how these situations come about, and how mediation can help prevent them!
One of the most common reasons parties refuse to mediate is that they hope the problem will just go away. Litigation and disputes are stressful, costly, and potentially open the party up to more liability elsewhere, etc.—all understandable motivations for wanting to avoid the situation entirely. However, none of those concerns will stop the situation from escalating if the other party is motivated. Failure to respond to requests for mediation often leads to lawsuits being filed. Failure to respond to the lawsuit will likely result in a default judgment. Unless you know that a lawsuit will be filed, regardless of your attempts to mediate beforehand, it doesn’t make much sense to wait. That being said, you should know that mediation will probably be inevitable nonetheless! It’s also about how the other party tends to find you. When it comes to most opposing parties, an openness to resolving things as amicably as possible can go a long way in finding them to be much easier to deal with. Failure to respond usually only results in an angrier opposing party who has now become motivated to make things more difficult for you in return. Try to be responsive, and firm, but always make an effort to be reasonable. There is typically a smoother resolution process this way.
Another reason people refuse mediation is the belief that they have a strong case and will win, or that the circumstances will swing more positively for them later on in the process via trial, a deposition, etc. While there are circumstances in which these feelings are valid, one has to be abundantly aware of the inherent risks of litigation. People often make missteps in taking or giving a deposition; a judge rules against you unexpectedly and you lose part of the case or a key piece of evidence; the other party files for bankruptcy; the list of potential factors that can come into play are virtually endless. Mediation is usually one of the last opportunities for the parties to have control over how they’d like to see the issue resolved. It’s an inconvenient truth. Life can be wild, letting a government official, or other individuals make critical decisions on your behalf is always a risky business. If you can work it out, work it out! It is much more proactive to save yourself the time, money, and exposure of moving forward into the unknown.
Failure to get past your hesitations about mediation will open you up to more uncertainty, increased costs, and a lot more time and energy expended on issues that shouldn’t take up large chunks of your life. After all that time and money spent, there is a high likelihood of settling at mediation closer to trial anyway. Consider dealing with it sooner and saving yourself the frustration, and get back to what life is supposed to be!