The Fallacy of a Failed Mediation

“Failures are finger posts on the road to achievement.” –

 C. S. Lewis

This week in the news there was a headline online which read ‘Touro Synagogue artifacts dispute to continue after mediation fails.’ And I began to wonder whether there was such a thing as a ‘failed mediation.’ Yes, parties may fail to reach a settlement but does this mean that the mediation process itself has failed also?

When I go to meet clients to discuss mediation the statistic which is of most interest to them is how successful is mediation? At CEDR Ireland, our settlement rate is an impressive 80%. In other words, 8 out of every 10 mediations which go through CEDR Ireland reach full settlement.  But what about that 20% that don’t reach settlement, the ‘failed mediations’ – have the parties just added an additional layer of unnecessary costs to an already mounting legal bill or is it really a failure? I don’t believe there is such a thing as a ‘failed mediation.’ While the parties may have not reached a full and final settlement there are many other outcomes which could have been achieved through the mediation process.

Firstly, mediation provides a forum for parties in dispute to come together in a room, sit across a table from each other and be provided the opportunity to be heard by the other side. Quite often in legal disputes, parties never met until they are walking up the steps of the Court after months or years of legal correspondences between their solicitors. As noted by George Bernard Shaw, ‘the problem with communication is the illusion that it has occurred.’

People want their day in court, they want to tell their ‘story’ – how this dispute has affected them, why they believed they were wronged. Mediation is the only neutral forum which can deliver this opportunity to disputing parties. Even where a mediation may have ‘failed’, it will have given the parties the chance to ‘have their day’ and to speak directly to each other. Moreover, it is known that emotions have no place in the litigation system. Cases are determined on legal positions and rights. Yet, every party to a dispute experiences emotion as a result of the dispute – anger, fear, regret, grief, envy.  Again, mediation provides a safe and neutral forum for parties to express that emotion. So even where there is a ‘failed mediation’, parties will have been given the opportunity to vent those emotions and perhaps get some closure on the emotional aspect of the dispute which may lead to more productive post-mediation settlement negotiations.

Secondly, mediation provides parties and their advisors an opportunity to conduct a realistic SWOT analysis of their case. So often when we are in dispute, we tend to only focus on why we are ‘right’, why we are going to win the case. We don’t like to think that our argument has weaknesses or what the potential implications of such weaknesses might be in a Court room. With the assistance of a skill mediator, parties and advisors can take a more objective review of their positions and the risk involved in not settling at mediation. In fact, mediators can give the parties a firm dose of reality which their advisors may not have wanted to do for fear of upsetting their client or where advisors have done so but the client hasn’t accepted – they may be more likely to listen to an independent third party. This means when parties and solicitors leave the ‘failed mediation’ this SWOT analysis will assist them in deciding how best to move forward with their case as they will have conducted a comprehensive risk analysis and strategic review of their case.

Thirdly, even where parties have a ‘failed mediation’ they will have had a chance to see the bigger and smaller picture. The bigger picture, as discussed above, is a strategic review of their case. The smaller picture is that mediation can help parties narrow the issues between them.  When people are in dispute, issues tend to snowball and people can lose sight of what the fundamental differences are between them. Indeed, “it isn’t that they can’t see the solution. It’s that they can’t see the problem.”

A skilled mediator using the techniques of reality checking and questioning can assist parties in identifying the real issues in dispute and bring the parties closer together in terms of creating options for settlement once these issues have been identified. Even where a full settlement has not been reached, many parties after a ‘failed mediation’ reach a full settlement post mediation because they have clarity on each other’s needs and interests. In fact, at CEDR 13% of ‘failed mediations’ reach settlement without proceeding to litigation as our mediators continue to work with both sides after the mediation.  Sometimes parties just need more time to process the settlement momentum achieved during the mediation process before signing the deal. Without mediation, parties may continue to lose sight of the bigger and smaller picture and in doing so, lose sight of the reality of the cost and time implications of litigation.

So, if the ‘failed mediation’ process can provide parties with an opportunity to tell their story, express vent up emotions, gain clarity on the risks associated with their case and assist in narrowing the issues between the parties which can result in a settlement at a later date – is there such thing as a ‘failed mediation’? I don’t think so. To echo the sentiments of George Edward Woodberry – “Defeat is not the worst of failures. Not to have tried is the true failure.”

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