Chapter II WHEN MEDIATION SHOULD BE CONSIDERED

• Jurisdiction: United States

II. WHEN MEDIATION SHOULD BE CONSIDERED

Robert M. Fishman

Of course, there is no one answer or even a correct answer to the question, "When should mediation be considered?" Many factors should be taken into account when determining whether mediation is an appropriate process for the parties to consider. The nature of the dispute(s), the procedural posture of the matter, and the interests of the parties are among the variables that potentially have a significant impact on this decision. However, one issue ultimately determines whether it is the right time to mediate: Are the parties ready to both engage in the self-determination process and reach a consensual resolution?

The success or failure of most mediation is directly tied to the acceptance by the relevant decision-makers that "now" is the time to attempt to solve the pending problem. This is so because mediation is a self-determination process. There is no court to impose an outcome on the parties. The mediator cannot "make" any party agree to anything. No party should feel compelled to reach a resolution in mediation. Without the decision-makers coming to the realization that the time is ripe for resolution, it is difficult, if not impossible, for the mediation process to result in a successful outcome, that being the consensual resolution of the pending dispute(s). It is the mutual commitment to a self-determined resolution that leads to a successful mediation outcome.

Sometimes, especially in the context of court-ordered mediation, the decision-makers come to the mediation process begrudging-ly. They are not optimistic about the chances of success and are not committed to the process. In that situation, it is incumbent on the mediator to provide a process that allows the parties to see the benefits of a self-determined, consensual outcome. Often, the decision-maker arrives at the right frame of mind during the mediation, rather than in advance of it.

A. The Dispute

Numerous types of disputes are appropriate for resolution by mediation. In the bankruptcy context, disputes usually fall into two categories: adversary complaints and "case outcome" issues, such as plan confirmation, asset disposition or the relative rights of competing parties. Mediation can be a useful alternative when parties want to reach resolution more quickly and less expensively than can be obtained by proceeding on the litigation track.

Adversary proceedings are often ripe for resolution through mediation. Most adversary...