What Makes Mediation Fail
Credit: @CHUTTERSNAP
Mediation is known to have a pretty high success rate, with most statistics indicating a success rate of about 85%. However, for the other roughly 15% where mediation does fail, there are a few common patterns that I’ve found in my experience that contribute to the process not going the way one might hope.
The first and most obvious hurdle involves parties who have been ordered to attend mediation by court or otherwise. The success rate reportedly drops to around 75% average resolution rate in these scenarios. The reasoning behind the drop makes sense, as people who don’t want to participate in mediation will not devote the same type of mutual thought or effort it takes to reach an agreement. These parties tend to be deeply entrenched in the fighting aspect of the dispute and less focused on finding solutions until they’re ready. Depending on the situation, this can make for little movement in the mediation process, or in worst case scenarios, bring the process to a standstill. However, with some patience, the process can still be statistically very successful after people find a better mindset and the parties can start exploring options. In my experience, at the very minimal, I’m still able to get the parties to agree on or dispose of some less central issues altogether. But, the most ideal party for mediation is definitely the one who has chosen it more freely.
When it comes to negotiation, it is important that participants be open with the mediator and explain their perspective of the situation, and what they think their options might be so that conversations regarding options can begin. The mediator may ask some of these questions, but if a party isn’t being forthcoming, it could prevent them from getting the most out of mediation and possibly risk its success altogether.
While in negotiation with the other party, it is also important not to arbitrarily assign value to anything when making an offer or demand. The mediator’s task is not to confront the other party with arguments they would make about the matter. The mediator really needs to convey what YOU would say about the matter to give the opposing party insight from your point of view. This is much more persuasive in conjunction with discussions the mediator may have with the other side than the lack thereof. If the mediator is able to have more well-rounded discussions with parties about their circumstances, in turn, the mediator can get better, more detailed feedback. The more precise everyone is about what they are asking or offering and why, the better.
Other issues occur when - despite the mediator’s best efforts - a party either cannot seem to understand or does not respect the mediation process altogether. When emotions run high, people have a tendency to lash out verbally, stare, mock each other, etc. Honestly, we can all be a bit childish when we’re emotional - particularly in our closest relationships. Unfortunately, you might notice it’s not a real game changer in the problem solving department. The mediator warns the parties about this and can even attempt to correct the situation, but every so often a party can really become unruly, usually to their immediate detriment. If one party or both parties begin engaging in this manner and cannot get it under control, the mediation process usually ends after someone gets fed up and decides they no longer want to participate. Outbursts like this generally waste a lot of time and as a result, often force the parties to take two steps backward in discussions.
The only way to get through problems without causing further damage is for each party to find a way to communicate what the issues are and how they propose to change the situation (without interruption). During this time, the other party must be an active listener or else there can be huge missed opportunities. Often, there are a couple of side issues that are less important than the central one(s) between the parties, and listening to the opposing party may inspire some ideas for resolution. Parties may also come to learn that the opposing party may not be after what was initially assumed, and there could be a much different and beneficial path forward for everyone involved. Just know and understand going in that you’re probably going to hear things you may disagree with strongly, and that is okay. The whole process is about hearing different points of view, finding commonalities, and working to get closer to a resolution all parties can live with.