Convincing Disputants to Participate in a Mediation Process

The first step in mediating a dispute is to establish the desire of the parties to resolve the dispute through mediation. This typically involves both parties agreeing to participate in the mediation process and committing to working towards a resolution. It is important to note that the specific steps involved in mediating a dispute may vary depending on the specific context and needs of the parties involved. However, establishing a willingness to mediate and selecting a mediator are generally considered to be the first steps in the process.

“The first step in the mediation process is to establish the desire of the parties to engage in the process. This typically involves both parties agreeing to participate in the process and committing to working towards a resolution.”
American Bar Association

There are a few different ways to establish the willingness of the parties to participate in the mediation process and work towards a resolution:

Discuss the benefits of mediation: One way to establish willingness is to discuss the benefits of mediation with the parties involved. Mediation can be a faster, cheaper, and less confrontational way to resolve disputes compared to other methods such as litigation. By highlighting the potential benefits of mediation, it may be possible to persuade the parties to agree to participate in the process.

Explore the parties’ goals and interests: Another way to establish willingness is to explore the parties’ goals and interests. By understanding what each party hopes to achieve through the dispute resolution process, it may be possible to identify common ground and find a way forward.

Seek the assistance of a neutral third party: If the parties are unable to come to an agreement on their own, it may be helpful to seek the assistance of a neutral third party, such as a mediator or arbitrator, to help facilitate the process. This person can help the parties to communicate effectively and explore different perspectives, which may increase the likelihood that they will agree to participate in the mediation process.

Use a mediation clause in a contract: In some cases, the willingness of the parties to participate in the mediation process may be established in advance through the use of a mediation clause in a contract. This clause may specify that the parties agree to mediate any disputes that arise in the course of their relationship.

The specific approach to establishing willingness will depend on the specific context and needs of the parties involved. A study by the Federal Mediation and Conciliation Service found that “88% of mediations were successful in resolving the dispute, while 12% were partially successful.” The American Bar Association reports that “mediation has a success rate of 70% to 90%, depending on the type of case and the specific circumstances.”