Not every case is suitable for mediation. Mediation is not appropriate in certain circumstances -- for example, when there is a history of violence, abuse, and/or mental incompetence, when one party is acting in bad faith, or when one party clearly cannot advocate for himself or herself.
For a mediation to be successful, both parties need to be willing to have a conversation. The mere fact that the parties are willing to mediate means that they are likely to work together to move toward a resolution. Almost three years ago, I needed a mediator to help resolve a problem with a contractor. Here is how my story unfolded:
My outside generator connected to my gas line failed during Hurricane Sandy and I needed to replace it. I procured the name of a master electrician (Master Electrician #1) who came highly recommended to me from the generator company that maintained my old generator. The company worked with him on a regular basis. I bought a new generator from the company and contracted with Master Electrician #1 to install it.
Six months after the install, the generator company came by for a routine maintenance, found that the electrician's work did not comply with the generator manufacturer's installation requirements, and voided my warranty. Master Electrician #1 responded to the manufacturer's complaints, but I had to pay extra money to the generator company to come out for inspection of his work and re-issuance of the warranty.
After this initial wave of problems, I noticed that my generator was sinking into the ground. My house is at the bottom of a hill and when it rains, lots of water runs down into my backyard where the generator is located. I contacted Master Electrician #1 who thought that the generator could be elevated by placing it on top of a couple of two by fours for an additional large fee. This option did not sound right to me.
I contacted Master Electrician #2, who told me that the generator should have been installed on a proper concrete pad. Moreover, there were new problems with the original electrical work: Master Electrician #1 had failed to meet numerous applicable code requirements. Master Electrician #2 did not want to get involved in fixing the problems created by Master Electrician #1 for various reasons. I contacted Master Electrician #3 who gave me another estimate and another plan to fix the problems.
Throughout these weeks, I had summoned all of my mediator skills to use with Master Electrician #1. I shared my perspective with him as a homeowner. I asked him to share his perspective with me as a contractor. I asked if he would be willing to brainstorm creative solutions with me. I asked him if he would share the cost of correcting the problems with me. He was not willing to talk about any of the issues and problems. He did not want to share any costs with me to correct any of the code violations. I talked with him one day in my back yard about the issues as he was looking at my generator sinking into the ground. He towered over me by more than a foot and he yelled at me in a bullying tone. I asked him if he would be willing to mediate and he said no, he would not be willing.
So I called my friend the lawyer. My lawyer and I drafted a quick letter demanding that he rectify matters and informing him that I would seek all available legal or regulatory avenues to seek redress for the damages I suffered as a result of his failure to properly meet the obligations of our contract. We informed Master Electrician #1 that his corrective work would be inspected by an inspector of my choosing. I really dislike using such strong language. I prefer collaboration -- having a conversation, identifying issues, brainstorming possible solutions, and working together to move toward resolution.
Master Electrician #1 immediately called me and said he would fix the problems. I was concerned that he didn't know how to properly reinstall the generator. Luckily, I had another friend who was a plumber. This friend owned a plumbing and heating company and told me that he had just bought an electrical company with a talented electrician, Master Electrician #4. My plumber friend wrote up yet another plan and estimate to reinstall the generator and to build a concrete pad.
I sent the estimate to Master Electrician #1 to guide him. Master Electrician #1 called me and said the magic words: "That estimate is really reasonable and your friend seems to know what he's doing. Want me to send you a check and your friend can do the work?"
I said yes and asked him why he had not installed my generator properly. He replied that his experience had largely been commercial and not residential. He just didn't know how to install my generator properly. He sent the check, I had Master Electrician #4 do the reinstall, and my generator has been working just fine ever since.
Why wasn't this a case for mediation? While just about any type of civil dispute can be mediated, mediation is not appropriate if one of the parties refuses to come to the mediation table. Both parties in a mediation must be willing to talk. In this case, Master Electrician #1 had no interest in talking. Perhaps he did not want to admit that he could not solve the problems that he had created. Perhaps he was embarrassed. Perhaps there is another reason I'll never know. But one thing I have learned as a neutral mediator is: if two parties involved in a dispute are willing to mediate, they almost always reach resolution.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.