MEDIATION WINS AND LOSSES

I’m often asked how often mediations result in an agreement.

Unfortunately, this isn’t a simple question, as It depends on whether you mean an agreement achieved during the mediation or due to the mediator’s influence on the parties involved.

Some mediations end with an agreement during the session. Some conclude without, but the parties later reach one informally. And yes, some never reach an agreement at all, but we don’t consider those necessarily a failure because the parties were given the opportunity to make their issues and feelings clear to one another.

If we limit the question to how many mediations reach an agreement at the end of a session, the answer accepted by most mediators is about 70%. The 2022 report of the Southern District Court of New York reported that of 1,550 mediations, 65% settled with variation by the type of dispute, with Consumer Credit having the highest settlement rate and Tort cases (harm caused by wrongful act or negligence) the lowest.

Mediation affords parties’ “self-determination,” that is, they have the right and power to decide or not. Since the power to decide rests with the parties, the mediator has no responsibility for their decision. If mediators begin to mark their success by the number of wins (settlements) they run the danger of unduly forcing the parties to settle. Therefore, it is considered unethical for mediators to claim a high success rate in their advertising.

To learn more, consult this author’s latest book, Negotiation and Mediation: A Communication Approach, available now.