Why are some mediations successful while others fail? You have to start at the beginning. The answer often lies in the steps that are taken by the parties and their attorneys before they even sit down at the negotiation table. Knowing the obstacles that sabotage a mediation from its beginning and how to overcome them will set you up for a successful mediation that ends with a settlement.
Let’s look at some of these obstacles
Lack of commitment to resolve the dispute
Nothing will sink a mediation faster than parties who are not committed to resolving the dispute. The mere desire to settle a dispute is not enough. Without a commitment from both sides, the mediation has little chance.
Why won’t parties commit? There can be many reasons, but perhaps two are most common. First, the parties haven’t been able to resolve their dispute up to this point, so they don’t believe the mediation will be any different. Second, the parties are overconfident in their case and believe they will prevail in litigation.
The mediator and the parties’ attorneys should inquire about the reason for their lack of commitment. If the parties are discouraged by prior failed attempts to resolve the dispute, you can explain how the mediator, as a neutral third party, can better assist with the negotiations. If the parties are overconfident in their case, you should help them better assess the strengths and weaknesses of their case, as well as those of the other party, and the risks involved with litigation.
The timing of the mediation can be critical. If it occurs too early, the parties may not have the information they need to assess the value of their case and the risks involved with litigation. If it occurs too late, the parties may feel they have too much invested in their case, will be less flexible, and more entrenched in their positions. The more the attorneys prepare for trial, the more difficult it may be to settle. The best timing is as early in the dispute as possible after the parties and their attorneys have a good understanding of the facts and legal issues, and before expensive discovery, such as depositions, take place.
Subsequently scheduled settlement conferences
A subsequently scheduled settlement conference can be problematic because it may cause the parties to feel there’s no pressing need to settle the dispute at mediation, since there will be another opportunity to settle later. This can extinguish any sense of urgency to resolve the dispute. It’s Plan B if the mediation doesn’t progress the way they’d like.
How can the parties approach the mediation with the urgency needed to resolve the dispute if there’s a subsequently scheduled settlement conference? You can help them by properly evaluating their case before the mediation and clearly stating their positions at the session. If the cases are properly evaluated and their positions are communicated clearly, then any offer at a later settlement conference won’t likely be any better than what’s offered at the mediation.
Lack of preparation
Mediations sometimes fail for the simple reason that the parties and their attorneys show up to the mediation unprepared. Lack of preparation for mediation has been described as a significant and recurring problem.
After exchanging mediation statements, the parties and their attorneys should discuss the risk factors of their case – the strengths of the opposing party’s position and the weaknesses of their own position. The parties need to understand their risk factors before the mediation begins. Don’t make the mistake of waiting until the mediation to start thinking about these risk factors and potential solutions. Consider solutions, both monetary and non-monetary, before the mediation.
Coming to the mediation prepared also sends a message to the other party and the mediator that you have properly assessed and valued the case, the injury or the defense is real, and you are serious about resolving the dispute.
The parties and their attorneys should bring all documents and information necessary to prove their case. Both parties should have all the information they need to resolve the dispute that day.
Insufficient mediation statements
Mediation statements are often overlooked by attorneys. While they spend hours crafting summary judgment motions, opening and closing arguments, or appellate briefs, mediation statements are often thrown together at the last minute, despite the fact that the case is more likely to settle than to be won on summary judgment, at trial, or on appeal.
Mediation statements should be both fully developed and timely submitted.
Mediation statements are summaries of the factual claims and legal arguments. The statement should give the mediator all the information they need to facilitate the mediation. If the mediator has a strong understanding of the facts, the law, and the parties’ arguments, then they won’t have to waste valuable time at the mediation exploring these and trying to understand the parties’ positions.
Also, submit the statement to the mediator well in advance of the mediation so they have time to read it and prepare. Again, this will save valuable time at the mediation.
Failure to discuss impasse
What happens if the parties reach impasse during mediation? If impasse is reached and you don’t have an answer to this question, the mediation will not likely move forward.
The mediator and the parties should discuss impasse and how it will be dealt with at the start of the mediation. What happens if and when the parties reach impasse? What steps will they take? Will they take a break? Change the venue? Resume another day? What happens to the progress that was made before reaching impasse? Did the parties reach agreement on those issues or are they back to square one? These are the questions that should be addressed at the outset to prevent impasse from sabotaging the mediation.
Ditching the opening statement
Should you use an opening statement? This question is often debated. Let’s ask a different question. Why do disputants settle? They settle because they determine that the proposed deal is better than the likely alternatives.
An opening statement provides an opportunity to lay out those likely alternatives and show the other side what they look like. Consider using an opening statement and tell the other side what happens if the case is not resolved at mediation. Discuss the legal arguments, what the evidence will show, why your case will appeal to the judge or jury, why theirs may not, and predict the likely outcomes.
Persons with authority to settle not in attendance
Another significant obstacle to settling the dispute occurs when the person with adequate authority to settle — or the ultimate decision-maker — is not physically present at the mediation.
When not present, the ultimate decision-maker is usually available by phone. However, anyone not present at the mediation can be very difficult to persuade. They haven’t experienced the dynamics of the negotiation. They haven’t heard everything that has been shared by the parties. They don’t have a feel for what has taken place in the mediation session, so they tend to remain fixed in their position. All of these things simply cannot be conveyed over the phone. Also, the mediator cannot facilitate the mediation effectively if they cannot communicate directly with that person.
The parties, their attorneys, and the mediator should inquire into and identify who has the ultimate settlement authority before the mediation, then make every effort to ensure that that person is physically present at the mediation.
False impressions and perceptions
First impressions matter. Why? Because they’re difficult to change. And they lead to lasting perceptions about people and their positions which can be an obstacle to resolving a dispute.
First impressions are usually made long before the mediation. Unfortunately, research suggests that first impressions can be so powerful that they’re weighed more heavily than fact. And disputes often cause false perceptions.
The good news is that impressions evolve and can even be overturned. While you may not get a second chance to make a first impression, you can create an opportunity to change one.
How can this be accomplished? Here are some approaches that can minimize or even reframe that false impression during the mediation: Being straightforward, honest, open-minded, and fair. These behaviors can go a long way toward changing someone’s perspective.
Proving who’s right
People have an inherent need to prove they’re right. But mediation is not the place to do that. A disputant is not going to change the other party’s mind about what happened, how they feel about it, and who’s right.
The mediation is not about who is right and who is wrong. It’s about the risks involved with litigation and the best outcome for both parties. Instead of focusing on who is right and who is wrong, the parties should focus on what will happen if the case is not resolved at mediation. That’s all that matters.
Every mediation will have its own obstacles. But knowing these obstacles and preparing for them at the outset will provide the best opportunity for the parties to resolve their dispute at mediation.
Aaron Schmidt is the Vice Chairman of Ohio’s State Employment Relations Board, which administers the state’s collective bargaining laws for public employers and employees. He is a graduate of Cleveland-Marshall College of Law. He has been a CMBA member since 2004. He can be reached at email@example.com.