Success in Mediation?

What does a successful mediation look like? Well, the obvious answer you might think is – a settlement! But not everyone agrees. For example Joe Folger, who with Baruch Bush developed ‘transformative mediation’ – an approach where mediation focuses not on solving short-term problems but on effecting deeper changes in interpersonal relations. 

Speaking at a conference in Milan, Joe addressed the question of what constitutes a successful mediation, saying the aim of mediation was not to achieve a resolution but ‘to help the parties to enhance their conflict communication’. From the floor, a Sicilian mediator stood and said that if his parties heard this, he could expect to be going for a swim in a pair of concrete boots. 

We probably all agree that it’s desirable to improve conflict communications, especially where there is a continuing relationship between the parties – for example, on-going trading or an employment or community dispute. But in commercial disputes what most parties are surely looking for is a deal. 

However, and despite the mediator’s best efforts, they don’t always get it. Which can give rise to the question – often mulled by the mediator on their lonely journey home – what, if any, benefit has the mediation had?

Perhaps surprisingly, there are more advantages than might meet the eye…

A truce or a stop-gap agreement

It may be that the best the parties can do is to agree a cessation of hostilities. This short-term strategy doesn’t ‘solve’ the central issues, but it does enable the parties to get on with their relationship pending a longer-term solution. 

As an example, a food manufacturer and its distributor couldn’t agree who was responsible for a major and expensive interruption to the delivery of product. However, it was vital to both that the national distribution of foodstuffs continued, so pending a judicial decision and with good grace, they agreed a temporary continuation that enabled them to work together in the meantime.

The start of a dialogue 

The mediation process can create a safe space in which the parties can discuss the issues between them more openly. Even if they haven’t settled them by the end of the mediation day(s), they may find they’re able afterwards to continue to explore aspects of the dispute and exchange information. 

In one such situation, further investigation of the amounts in the claim after the mediation led the parties to realise that there had been a misunderstanding between them and that resolution was possible. 

Bringing issues into focus 

A common feature of many mediations is that particular issues emerge as critical that beforehand may not have seemed so important. As information is exchanged and questions debated, even the most astute representatives can find that issues take on a new and unexpected significance. Parties may recognise a new relevance in a particular point and go away to drill down into it. In this way the mediation can suggest an agenda for next steps to be taken. 

Recognising that dialogue is over

More than once parties have thanked the mediator for an ‘unsuccessful’ mediation because it has become clear that there’s no point in further discussion. 

As an example, a public body had a duty to explore all reasonable steps to enable its contractor to comply with its contractual obligations. In the course of the mediation, it became clear that however much time they allowed, there was no reasonable prospect that the contractor was ever going to fulfil its responsibilities under the contract, which could then properly be terminated.

So in the absence of an enduring resolution, can mediation be claimed as a success? Most definitely! Even if settlement isn’t achieved, parties can come away from the process with a number of valuable outcomes. And mediators need not worry about swimming in concrete boots!

And when settlement looks unlikely?

Of course there are some mediations where, despite all the mediator’s dark arts, one or other party just doesn’t want to settle. Sometimes this might be a cynical attempt to tick the mediation box, or to extract information from the other side (though this is much rarer than parties fear). 

More likely is that one party wants to drive the expectations of the other down or up, to set their own parameters for the Zone of Potential Agreement. So in one case, a party made a concluding offer that, as they privately acknowledged, had no chance of acceptance. ‘But,’ as their representative told the mediator, ‘they’ll be more interested in six months’ time when we repeat it as our final offer.’

Either way, if the mediation is coming to an end without settlement what’s a mediator to do? Pack their bag and walk away? Not so fast!

If all else fails, and despite the mediator’s best efforts, parties simply won’t agree, there are still critical steps that can be taken to ‘close’ the deal, or prime the parties for a later settlement.

Before throwing in the mediator sponge, a mediator might try one of these strategies:

Return responsibility to the parties

If there really does seem to be no more that the mediator can do, it may be valuable to make this explicit with the parties. In private – or preferably together – it’s important for the mediator to let them know that the mediation has run out of road. 

Not only is this a reality test of sorts, but it can have the effect of reminding parties that responsibility for finding a resolution lies with them. There may have been a tendency to look to the third party neutral to find ‘the solution’, and when she or he can no longer be relied on to do that, the parties may be galvanised into renewing their own efforts.

Make a proposal

There seems to be a trend, particularly among more business-minded mediators, to offer unresolved parties a proposal, a figure at which the mediator thinks the dispute might settle. 

This may seem challenging for those of us who self-identify as facilitative mediators. So it should be emphasised that this isn’t an evaluation of the merits of the respective issues. Rather, it’s a pragmatic guesstimate of a figure, or a package, where the mediator thinks the dispute might settle. It’s subject to a) the parties’ willingness to take this course, and b) the mediator maintaining confidentiality about each party’s response to the proposal – unless both say yes!

Hit the pause button 

There are some mediations where it’s clear both to the parties and the mediator that it can go no further and there’s no prospect of resolution. There are others where, despite the parties’ pessimism, the mediator senses there’s a possibility of further progress, however faint the flicker of life may seem. 

It’s a source of surprise – and some satisfaction – that post-mediation follow-up can breathe life into a negotiation that might have seemed to be extinct. It may help if the parties will agree to ‘pause’ the mediation for a period of, say, a week to give the mediator opportunities to continue the negotiation by phone or online.

Postscript: it really isn’t over until it’s over

Sometimes, long after it’s ended, I’ll run into someone who reminds me of a past mediation. They thank me for my service. ‘Shame it didn’t settle,’ I say. ‘Oh, but it did!’ they say. ‘It took another year but we did the deal in the end.’