Can mediation without settlement be a success?
When a mediator approaches a dispute that he or she has been asked to mediate, it can be tempting to go into it with a rather simple goal – getting a settlement. That view is not a criticism by any means. As mediators, we want to help parties resolve their disputes and we gain a great deal of satisfaction in seeing people walk away from the table with an agreement that they can live with. That said, it isn’t always going to work that way.
Often times, numerous factors will play a role in frustrating settlement discussions. Those factors can include lack of preparation by the parties, incomplete document disclosure, timing of the litigation or quite simply a lack of mutual understanding amongst the parties.
This last factor is one that can be a crucial hurdle in achieving a settlement. In many cases, the parties are represented by counsel and have not had any contact with one another for many months. Arriving at mediation and being in same room with one another can elicit feelings of anger, distrust and other emotions that led to the dispute in the first place.
In cases where emotions run high, mediation can provide a forum for parties to simply talk and listen to one another. A skilled mediator will recognize that communication must be re-established and if possible, encouraging the parties to speak to one another will be as important as the issue at stake.
Consider the situation with the current National Football League labor dispute. The matters at stake there are currently before the courts yet the parties have engaged in mediation on multiple occasions. Those mediation sessions have not resulted in an agreement but it’s interesting to note that on the eve of a further mediation session, the presiding judge cancelled it on the basis of ongoing settlement discussions between the parties.
This is but one example of where mediation may not result in an immediate agreement but it can provide the parties with an opportunity to communicate and learn more about each other’s positions which can ultimately get settlement discussions on track and disputes ultimately resolved.
Comments or questions? Ask Solvit’s people:
Neil Hain, Pat Poyner, David Yule