Mediation is an alternative dispute resolution tactic meant to help foster communication between two parties, allowing them to find common ground and avoid lengthy or costly litigation. During mediation, a neutral third party helps facilitate a productive discussion between parties in a dispute. Through communication and working together, parties often find a mutually beneficial resolution to their legal situation. However, that is not the case in every situation.
Despite comprehensive talks and negotiations, sometimes mediation fails. When this happens, you may be left wondering what comes next.
Why Mediation May Fail
Mediation can be a helpful dispute resolution tool when both parties want to work together to reach a solution that addresses both their needs and concerns. However, mediation tends to fail when one party is inflexible, has unrealistic expectations, or refuses to engage in the mediation process meaningfully. Mediation is about compromise and understanding the other side’s point of view. When one party refuses to compromise or negotiate in good faith, mediation may be destined to fail.
Poor communication can also quickly dissolve mediation talks. Mediation fosters communication between two disputing parties, attempting to help them understand the situation’s strengths and weaknesses to make progress on a reasonable compromise. Miscommunications, hot emotional responses, and failure to listen to the other side are common breakdowns in communication that can lead to mediation failure.
One potential issue that can also occur during mediation is an imbalance of power. Although individuals can engage in mediation without legal representation, it is never in the best interest of an accident victim to walk into an alternative dispute resolution without an advocate. Inadequate preparation for the process, an imbalance of power or intimidation, and potential hidden agendas can turn the process against a vulnerable accident victim.
What Happens If Mediation Fails?
In Montana, if mediation fails, accident victims still have legal avenues to seek compensation and resolve their situation. Both parties can agree to pursue binding or non-binding arbitration in some situations, depending on why mediation failed.
Arbitration
Another form of alternative dispute resolution is arbitration. Arbitration is more formal than mediation but not as formal as a trial in court would be. Unlike mediation, arbitration involves one or more arbitrators weighing in on the dispute and rendering a binding or non-binding decision. In a binding arbitration, the arbitrator’s decision is legally enforceable.
Arbitration has distinct advantages and disadvantages after mediation failure. Arbitration is similar to mediation in that it is typically quicker and less costly than pursuing litigation. Like mediation, results are also confidential. However, in binding arbitration, the arbitrator’s decision is legally binding, and you have few options for moving forward if you disagree with the outcome. In non-binding arbitration, either party can still go to court if they disagree with the arbitrator’s decision.
Litigation
When mediation fails, individuals may still have the option of pursuing litigation through a personal injury lawsuit. An attorney can help manage the complex process of filing a lawsuit and preparing to take your case to court. Even when mediation fails, pre-trial negotiations may yield a positive result without going to trial. Most personal injury cases get settled outside of the courtroom. However, when pre-trial negotiations break down, your only option may be to go before a judge or jury.
Litigation tends to be more time-consuming and expensive than alternative dispute resolution methods like mediation and arbitration. However, with a strong case, you may recover more significant compensation. Additionally, if you take your case to court and you disagree with the court’s decision, your lawyer may be able to find a way to appeal your case to a higher court. An appeal is not an option in alternative dispute resolution.
Another consideration when comparing mediation outcomes to litigation outcomes is that court decisions are legally binding. On the other hand, in Montana, mediation outcomes can be rejected before they are turned into a written contract and signed by the parties. Additionally, if a court finds the mediation agreement to be fundamentally unfair or suspects that the agreement was made because one party was coerced, the agreement can be overturned. Working with an experienced personal injury attorney is best to help you understand your post-mediation legal options.
How Travis & Brann, PLLP Can Help You If Mediation Fails
At Travis & Brann, PLLP, we have the legal experience and resources to help guide you through mediation, arbitration, and litigation, no matter what your situation’s circumstances. We take the time to carefully evaluate the circumstances of your case and outline the options that offer you the best chance of a favorable outcome. Does mediation always lead to a settlement? No, but the legal team at Travis & Brann, PLLP can help you through the next steps toward resolving your case.
Contact us online or call our office today at (406) 752-7550 and set up a confidential legal consultation to discuss your case with a Kalispell personal injury lawyer. We are here to help guide you with dedication and determination.
