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Agreeing not to meet in mediation
September 5, 2014
Many disputes, suitable for mediation, are over the ownership of land and use of and access to space. Boundaries which aren’t agreed, communal areas accommodating diverse interests, levels of noise between proximate buildings all trigger strong emotional responses. The people on either side of the fence – literally – perhaps disputing the height of the hedge, are all suffering. Many struggle to think of a resolution as they are stuck in a belief that they are right and the other person is wrong and the middle ground is unavailable, invisible, not to be given in to. Where do they go from here?
Mediation is often offered and in some cases refused because one or both the parties cannot imagine how the dispute could be resolved. This is sometimes what drives litigation – a belief that a judge will ultimately declare that the injured party is right. This of course overlooks the fact that usually each party considers itself, to varying degrees, the injured party. Others, looking at the legal costs as well as the impact the dispute is having on their lives while they await the court result, are prepared to look to an alternative method and see whether mediation reaches the parts negotiation and litigation and they themselves, can’t.
Ordinarily, on the day of the mediation after the mediator has made some introductory remarks and set out how the mediation will work, the mediation begins with a joint session where both sides listen to each other’s opening statements. The dialogue which ensues is conducted in both joint and private sessions with parties working towards an agreement, assisted by the neutral mediator. Ironically in some mediations the parties, who have the power to control the outcome of their dispute, are unwilling to share the same space as the other party and no joint session is held. This does not always feel comfortable for a mediator but the process is voluntary and if the only way it will work is if all parties remain in their own rooms then it is for the mediator to do the walking and keep up the momentum between the parties as they explore possible solutions. Where one party wishes to meet the other and the other refuses, different considerations apply. The challenge for the mediator is to encourage both parties to continue to believe that the process of mediation can be adapted and a resolution found, even though for one party their need to meet the other is not being met. If the parties themselves can work on the problem without physically facing each other in circumstances where they would prefer to, the mediator can too. What continues to be demonstrated is the parties’ desire and willingness to try and resolve the dispute will outweigh the significance of not having a joint session.
