I’m often asked why parties in mediation can’t reach a mutually agreed upon outcome. One reason is because there are times when a party uses mediation in an attempt to reach a totally unrealistic objective. 

For example, recently a senior citizen widow sued her contractor over $2,000 worth of work he did not complete under their contract. Typically, such cases in Small Claims Court are referred to mediation as these are commonly disputes that are easily handled and resolved in using this method.

However this one was a bit different. During mediation the plaintiff was asked what brought the parties to the table as it were. She began by explaining how she’d seen the defendant’s work in their neighborhood and requested he do some work on her home too. She then went on to explain that they fell in love and had a relationship that lasted about 6 months. He even moved into her home. She then went on with her story in tears. It seems that one day he told her he was going back to his wife and moved out. She kept saying that all she wanted was for him to “come back” as “she was deeply in love with him.” Of course the mediator attempted several times to get her to focus on her Small Claims claim of $2,000. She kept returning to the story of their relationship, but the mediator was eventually able to determine that she was claiming some countertop work wasn’t the color she had ordered and wanted it replaced along with some minor corrections to other work he had done. The mediator asked if she had a basis for the dollar amount such as a bid from another contractor.  She replied that she didn’t want another contractor to do the work, she wanted only him to come back and do the work himself.

Finally the mediator was able to turn to the contractor. During the plaintiff’s statement the contractor had been sitting quietly with his arms folded across his chest. When given the opportunity to speak he would only respond to the mediator. He had a copy of their signed contract which specified the color of the countertop he installed and said he would be happy to send some of his workers to her home to do any minor repairs and touchups she wanted. 

The plaintiff flatly refused.  She wanted him to do the work in person. She then went into the story of their relationships again.

Finally the mediator called an end to the mediation as it was becoming increasingly clear that positions were absolutely firm. 

You might be interested to know what happened in court. The plaintiff told the same lengthy personal story, and the defendant presented their signed contract and offered again to send his workers to do any minor repairs and touchups. This particular judge typically issues decisions by mail within a week. But on this occasion he ruled from the bench in favor of the defendant.

A dramatic story perhaps, but it illustrates a basic assumption in conflict resolution theory, that is, all parties involved must recognize that there is a conflict.  The plaintiff may have felt hurt and betrayed, but she did not have a legitimate dispute over the contractor’s work. The contractor may have had a relationship with the plaintiff at one time, but that was history. He did not recognize any current relationship. The plaintiff was trying to use mediation and the courts to recover a personal relationship gone bad.

For mediation and conflict resolution to work the parties involved must all accept there is a conflict. That simple truth is the same in personal relationships as it is in international relations.

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.