How to Encourage Someone to Participate in a Mediation?

You have determined that there is a situation within your family that can no longer go unaddressed. It may be a son who is managing mom's money and mom never seems to have any money for her basic needs, a daughter who has been providing care for mom but mom's daily needs are not being met or a separation from your spouse or partner.

Whatever situation you are dealing with, you would better find a way to address the issue amicably rather than "going to court". You did your homework and feel that mediation would be the best alternative. You are now wondering how to discuss this matter with the other parties involved and encourage them to agree to participate in a mediation. Below are a few tips to help you achieve that goal.

How to introduce mediation to other parties?

Bring it up in person. While it may seem more convenient to send a text or email, bringing it up in person sets a more personal tone and indicates a willingness to work together peacefully.

Tell your interlocutor about the issue you are concerned about in general terms and never accuse a person in particular of any wrongdoing no matter whom you are talking to. The reason for this is pretty simple to understand: you cannot on one hand offer an olive branch and, on the other hand, act like a prosecutor by accusing someone of specific reprehensible behaviors.

On the contrary, you need to keep an open mind towards what the other parties will have to say about the situation and especially towards the arguments of the person whom you suspect to be the source of the problem.

Therefore, be a good listener by making your best efforts to understand why he/she feels this way. In return, explain to the persons you converse with that you are uncomfortable with the situation and that to avoid any conflict and to protect the future of the family cohesion you have contacted a professional mediator to help all of you avoid any misunderstand or miscommunication and solve the matter at stake courteously and constructively.

During the course of the conversation, do not forget to emphasize the fact that mediation is a voluntary process where individuals with different opinions will work together with the help and guidance of a professional mediator to discuss these topics and reach an amicable solution that can benefit all of you.

Insist on the fact that mediators are neutral, so they are not going to take sides and that it is not an ambush. Meditation gives all the parties involved a unique opportunity to speak and decide for themselves. As a result, there is no winner or loser as opposed to what would happen in a court of law where the judge makes the decision for the parties and determine who is right and who is wrong.

Point out that a mediation session is nothing like a court hearing for the following reasons: 1). Mediators cannot give legal advice; 2). The mediation aims to talk about given problematics and discuss ideas as to how to resolve them without going to court; 3). Mediation is confidential which means that anything said during the mediation cannot be used later outside of the mediation and more specifically in a court of law. So, everyone can just talk freely.

Stress the fact that each participant will have an opportunity to talk with the mediator before the mediation session and ask all the questions they want, so they can make an informed decision regarding whether or not they want to be part of the mediation process. As a reminder, at Mediation Path Silicon Valley there is no charge for these discussions with possible attendees to a mediation. It is just an informal discussion where we volunteer to answer pro bono any questions people may have about the mediation process.

Understanding and overcoming mediation hesitancy or refusal

By attempting to have mediation at the very beginning of a dispute, you are signaling to the other side that you are willing to talk about a collaborative resolution. It may take the other parties some time to realize that mediation can be a better choice than a court trial. Below is what you need to know to understand and overcome mediation hesitancy or refusal.

One of the most common reasons that lead a person to hesitate to be part of a mediation is that the person doesn't even see that there is a problem. The daughter has been providing care for mom and she feels that her level of care is fine. Mom isn't complaining so what's the problem?

Another common excuse given by people who are not convinced that the help of a mediator is needed is as follows: it is a waste of time and money. The family members can talk about the situation themselves.

Lastly, sometimes, when someone is extremely hesitant about mediation or immediately refuses to participate, it might be because he/she has something to hide. For instance, the son knows he has been using Mom's money for his personal expenses and is afraid this will come out in the mediation. In that case, as mentioned above, it is better not to reveal all the details of the issues you want to discuss during the mediation, just depict the situation in general terms.

For instance, in the above-mentioned example, you may consider saying to your interlocutor something like this: we are concerned that mom’s money will not be enough to cover all her needs in the near future and we would like to enlist the help of a mediator to work on mom current expenses and determine together how to best allocate her money in the future. Note that presenting mediation as a tool to prepare a better financial future for mom enables you not to accuse the son of using mom’s money for his personal needs.

If you still encounter a refusal to mediate, you may want to keep working with the mediator to identify what the issues are, the priority you put on each of them, and which one(s) are your most interested in resolving ASAP. This exercise will help you to begin to think creatively about how the most urgent problem(s) could be resolved and, what additional information you may need to evaluate the situation in a rational and practical manner. For instance, may be mom would need to be evaluated by doctors to check what she can do and what she cannot do on her own.

Based on our experience, many times, people reject mediation at the beginning of a dispute but after some time goes by, they will understand that mediation is an alternative worth pursuing compared to the cost and length of court filings, court hearings, and payment of attorney fees. To put it simply, after a while most people will acknowledge the fact that mediation is quicker and less expensive than a trial: just a few hours of your time and money spent to resolve the issues versus months and sometimes years in court.

Also, bear in mind that in the long run, even if you were to initiate a court proceeding to overcome someone initial refusal to participate in a mediation, the majority of the cases settle without trial and that the resolution of a case pending in a court of law can occur at any point in the case even the day of trial. In other words, while mediation may be rejected at the beginning of the process it can be reintroduced during the trial by the parties, their lawyers, and even ordered by the judge. In that case, the lawyers participate to the mediation.

To conclude, many of our clients express the feeling that even if they were not able to get someone to initially agree to mediation "at least they tried" to deal with the situation in a friendly and open manner. As a result, they feel that the time spent to prepare for mediation is never wasted as they are better armed and prepared to start a legal action with a clearer vision of what is at stake and what they want to deal with first. They also appreciate the fact that although some persons at first rejected this opportunity to sit down and work together it doesn't mean it won't result in mediation later on.

At Mediation Path Silicon Valley, we are trained mediators available to discuss your mediation options with you. Call us if we can be of service to you and your family.