In my last post I discussed one reason parties in a mediation can’t reach a mutually agreed upon outcome. Another reason I would like to discuss is a misunderstanding of what the mediation process is.

This past week I began another class for individuals interested in becoming volunteer mediators in California Small Claims Courts. After a brief introduction emphasizing that mediation is a process where disputants resolve their conflits with the help of a neutral third party, I usually ask the group what experience they may have had.  Typically, some have heard of or have had some experience with Family Court mediation and very few with mediation in other settings.

One person said she had had a terrible experience with mediation. She said she felt that the mediator was not neutral and was forcing her into an unfair settlement resulting in bad feelings about the entire process. She described the mediation as a failure and admitted to conflicting feelings about becoming a mediator herself because she wanted to help others reach agreements, but didn’t want them to have the same poor experience she had.

With that, I decided o take the time to discuss two problems I felt had occurred during her mediation.

First: Standard One of the Model Standards of Conduct for Mediations is “Self-Determination.” A mediator must conduct mediation based on the principle of participants coming to voluntary and uncoerced decisions regarding process and outcome. That means that participants must have an understanding and accept the process the mediator exercises.

There are several styles of mediation, but perhaps the two major styles are Facilitative and Evaluative.  In the facilitative style, the mediator employs a process to assist the parties in reaching a mutually agreeable resolution by asking questions and helping parties find and analyze their options. The facilitative mediator does not make recommendations nor give advice. I often describe this style as “the mediator owning the process; the disputants owning the conflict.”

The evaluative process is modeled after settlements conferences held by judges where the mediator points out weaknesses in the parties’ cases and predicts what a judge or jury will likely do. In such a case, the evaluative mediator directly influences the outcome of the mediation.

When I asked my student if she’d been informed either in an agreement to mediate or in what the mediator said at the beginning as to how the mediation would be conducted, she said she had not. That was problem #1.

Second: Standard One also makes it clear that self determination includes that either party may withdraw from the mediation at any time. I asked my student if she understood that she could stop the mediation. Her answer was clear, “No, had I known that I would have stopped it. I was forced into an agreement I didn’t want.”

That mediation did not result in a mutually agreed upon outcome. We’re yet to see if the mediator's highly influenced decision was accepted and implemented. No matter the result, she certainly isn't motivated to accept it.  

Not every mediation results in a resolution. 

Mediators do recognize, however, that even though a resolution is not achieved, the parties have moved forward with a better understanding of their own and their adversary’s positions. With such knowledge of the issues, both parties may now be better prepared to negotiate with one another.

But there are some mediations in which one of the parties simply refuses to participate in good faith. Beginning mediators often ask me why that happens and what they can do to help.

There can be several reasons why a party refuses to participate in good faith in a mediation. Today, I will address one reason and discuss others in future posts.

Beginning mediators find it challenging in court mediations when one of the parties simply refuses to participate because they “know that when they get in front of the judge, the judge will see that they are right.” Let’s call this the “I’m right; You’re wrong” belief.

I frequently tell beginning mediators that I have asked parties in confidence to tell me who’s right and who’s wrong in their dispute.  Most typically both parties believe they are 100% right and their adversary is completely wrong.  Obviously when both parties have that belief, any resolution is unlikely.

In Small Claims Court parties may simply refuse to participate in the mediation process in any meaningful way.  In a caucus they believe they don’t have to compromise because the judge will agree with them. But judges hear both sides and the person who’s convinced they’re totally right, only knows one. And so shock sets in when they discover the judge doesn’t see the dispute the same way they do.

The “I’m right; You’re wrong” belief also occurs in high stakes disputes. I’ve observed a case in which the initial positions of the disputing parties were a $12MIL offer from one party and an $18MIL demand from the other. In mediation, the party demanding $18MIL refused to consider creative solutions involving more than money and or a simple “split the difference” compromise. So far, both parties have expended about $500K in attorneys’ fees and going into year three of their disagreement.

What strategies can be used in such cases? I have had some success in getting parties to begin accepting that their adversaries are not totally wrong with questions such as “what would you do if you were in their position?”

Many mediators will use WATNA, that is “worst alternative to a negotiated agreement” strategy, meaning if an agreement isn’t reached, are you prepared for the consequence? I might say to a disputant, “I know you’re sure the judge will see this dispute your way, but just for a moment, consider what would happen if the alternative happens.  What then?” In many cases, the possibility of a major loss motivates a disputant to begin talks with their adversary.

Many people hold the “I’m right; You’re wrong” belief and won’t engage in meaningful negotiation until they begin to recognize that no one is  totally right or totally wrong. There’s usually a way to find some common ground if there is a willingness to be open minded.