Some time ago I was honored to be a consultant to a major transportation agency. Today, transportation agencies deal with projects that can involve major opposition. For example, the redesign of a highway that has a high accident rate can involve the destruction of old growth trees. And a new runway can result in the destruction of wetlands.

Conflicts such as this don’t seem to be readily addressed by compromise. No obvious outcome seems acceptable. The high accident rate on the highway shouldn’t be allowed to continue. The old trees and the life they support can’t be replaced. It isn’t possible to partially redesign the highway and take out just half of the trees. A new runway can’t be shortened, eliminating the threat to the life supported by the wetland.  Compromise in these cases just doesn’t seem possible.

In urban areas transportation agencies deal with competing demands over bicycle lanes. Some argue that bicycle lanes are environmentally friendly reducing car use; others argue that bicycle lanes favor only a special interest group at the expense of others. It’s not a compromise to make the bicycle lane smaller.

In conflicts such as these it is common to talk about mitigation. A dictionary definition of mitigation is to reduce the risk of loss from the occurrence of an undesirable event. In the examples above, mitigation is meant to offset the loss one party will experience.

So, for example, if the runway will be built what can be done to mitigate the loss of wetlands? Can other land be set aside as protected? If a bicycle lane is to be set aside in one neighbor where residents object, what other thing could be done to benefit the resident of that neighborhood?

In mediation when parties agree that compromise is not possible, I encourage the parties to think creatively with questions such as, “If you can’t compromise, what can you do? What can you do to offset the loss the other party feels they will experience?” When the parties move towards considering ways to mitigate loss, they find they can work together.

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.