Mixed Signals - What Are You Communicating When You Request Mediation?

By Ehsan Ali and Alnoor Maherali

“If I ask to mediate, won’t it be taken as a sign of weakness?”

This is a fear that we hear from potential clients - that their openness to mediating a dispute might give the other party a sense that they lack faith in their case.  Or that they are desperate for a deal. You might be wondering whether requesting a mediation with someone might send these signals to the other party. 

These are fair concerns and certainly possible. But we still recommend mediation for two reasons. 

First, think of what you could gain. That is, the possibility for an agreement that is better than you could have gotten in a courtroom or in front of an arbitration tribunal. In facilitative mediation, which is Venn Mediation’s operating philosophy and methodology, parties achieve a greater percentage of their goals, generate options they couldn’t have predicted, and do so in less time and at less expense. Most importantly, you are the one dictating the terms of the agreement rather than having them dictated to you.

Now let’s say you don’t reach a deal in the mediation. That’s ok too. Confidential mediation sessions, like those offered by Venn Mediation, give the parties a chance to explore their diverging views on the dispute. So you will leave with a greater understanding of other party’s interests and the outcomes they could be comfortable with. And even if you do not leave with a full agreement, you are still likely to come together on some things. Shrinking the list of issues is a win for you as it lets you focus on the heart of the dispute and negotiating can be easier when there are less issues to deal with.   

Second, let’s consider what you could lose.  The other party might take your request to mediate as a sign that you aren’t confident about your case.  This is particularly true among people holding certain ideas about dominance in a business environment.  But that perspective misses something critical about the transparency of the process. Rather, a party that is genuinely concerned about the strength of their case would do everything they can to avoid mediation. 

As mediation allows parties to speak openly about their perspectives, a party that is bluffing would be ill-advised to mediate given that their counterparty could see through them at any time.  In our experience, it is mostly parties who feel they have a legitimate claim or grievance against the other party that seek mediation. So, requesting a mediation is actually a sign of confidence in one’s case, not doubt. 

As such, if you are in disagreement with someone over an issue, we suggest giving Venn Mediation a try.  If your counterparty mistakes openness to mediation as a sign of weakness, they will be that much more stunned when you show them the strength of your case, which will benefit you in the mediation or, if you choose, in court or arbitration afterwards.  Regardless, you are giving them a chance to hear you out and getting a better understanding about their side.  There is a reason New York State courts have recently moved to the presumptive mediation model (mandatory pre-trial mediation) – the process works and can help parties resolve their disputes faster.  Which means less time spent in limbo as you wait for a judgment or decision from a third party. 

In summary, openness to mediation is not a sign of weakness but rather a sign of intelligence.  It is a signal that you are open to a better and more efficient resolution. Disputes are never easy, but dispute resolution does not have to be hard. If you are dealing with a conflict, contact us about the nature of your dispute. We are based in New York but do online mediations as well. We would love to help.

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