WHEN MEDIATION ISN’T GOING TO WORK

I am a strong advocate for using mediation to resolve disputes. Nonetheless, I am frequently asked why mediation doesn’t always result in a mutually agreeable outcome.

First of all, I respond that even though disputants don’t reach an agreement, it doesn’t mean the mediation was a failure. In mediation there is the opportunity to hear the other participant’s demands, express grievances, and perhaps see more effective ways to present one’s own position. This typically prepares the parties to be more successful at navigating future resolutions.

But realistically, I can often tell when parties are going to have difficulties with mediation. Remember, the brilliance of the process when working with a mediator is that it can develop a mutually acceptable outcome. But it is clear, then, that when one of the parties has no intention of resolving the dispute, such an outcome is unlikely.

 With this in mind, you might ask why anyone wouldn take the time to mediate when they have no intention to resolve the dispute? Sometimes in court referred mediation parties see it as simply something they have to go through in order to take the dispute into court.

 Every mediator can share examples of moments where one of the parties is absolutely entrenched in their position and is simply not open to listening to other points of view, disputing what they believe to be their accurate and justified position. If it is a court referred dispute, these participants “can’t wait to get to court” because they’re convinced the judge will rule in their favor. Usually these disputants are surprised when the outcome in court deliver unfavorable result.

If the party is a business or other corporate entity with an established policy of non-negotiation, their representative will reject such an option outright when mediation is proposed.

Mediators are trained to help people consider the process as a preferred alternative to not settling, but if one of the parties is simply not willing to meaningfully and productively engage, then no resolution will result.