But how do we define failure in mediation?
Most dictionary definitions of failure refer to a lack of success. Of course there are degrees of success so perhaps “failure” is not quite an appropriate descriptive term. In my experience few mediations result in “failure” or to term it more appropriately, a lack of success. An element of success is prominent in most mediations.
Even where there is no concluded agreement the parties may leave mediation with a better understanding of each other’s point of view, the concerns they both have or even a partial or trial agreement. In a property settlement matter or contractual dispute the parties may leave the mediation knowing they are only a certain sum or issue apart. This will often lead to agreement after the mediation. The mediation, whilst not resulting in a concluded agreement may very well lead to exactly that, whether in one day or on the eve of the trial.
Failure to prepare, unwillingness to commit to the process, inability to communicate, deep animosity, mistrust or just being plain obstinate are some of the unhelpful attitudes and attributes the parties themselves can bring to a mediation.
Impasse, deadlock, stalemate, stand-off, standstill, and other terms are often used to describe a point in mediation where the parties cannot move forward to agreement. It is at the point of impasse that an experienced mediator will use the tools he or she has available to assist the parties to overcome the impasse.
These and many other factors will influence the success or failure of mediations but the most important steps occur before the mediation even commences.
How not to Fail – by Starting off on the right foot
Self-determination by the parties is the ultimate goal in mediation. Mediation is not the time to overtly champion your client’s case but it is a time to assist your client in making his or her decision to reach a mutually agreeable outcome on the day. The lawyer’s role is to support and to advise but certainly not to direct. Remember, mediation is a conduit for self-determination. If your client needs to be directed what to do and can’t make their own decision then mediation is may not be an appropriate forum for him or her.
Get the best outcomes from mediation for your client before the mediation even begins by:
- Choosing an appropriate mediator. It is not an absolute necessity that a mediator have particular expertise and knowledge in the area being mediated. However, having said that it can be an advantage. A knowledge of the area being mediated can ensure that the agreement being reached is both practical and capable of being documented or accepted by a court as a consent order.
- Ensure the mediator is briefed appropriately and in a timely manner.
- The Mediators preparation – Intake SessionsYour chosen mediator may or may not conduct intake sessions prior to the mediation. Whilst it may depend upon the particular circumstances of the dispute or the parties there is divided opinion as to whether a mediator should or should not conduct separate private meetings with the parties before mediation.There are advantages and disadvantages. Disadvantages include that prior contact may create, inter alia, distrust and suspicion by the parties of the mediator, lawyers may need to be educated about what transpired in those sessions when they were not present, time pressure may be oppressive, and also there are cost considerations.My own usual approach is to engage in separate meetings (intake sessions) either personally or by telephone in the days prior to the scheduled mediation and follow those up with brief meetings before the mediation commences. The benefits of private meetings or intake sessions, in my opinion, outweigh any negatives as they help the mediator:
- to create understanding and trust in the mediator (a rapport);
- educate the parties about the mediation process ;
- assess how best to structure the mediation;
- assess whether the parties are ready to mediate;
- determine if the matter is suitable for mediation because of power imbalances and safety issues (National Mediator Accreditation Standards – Practice Standards 4 (1);
- to decide whether to use joint sessions, separate sessions or perhaps video or telephone mediation;
- put the parties at ease before the mediation and they can take away any “homework” the mediator may suggest to them;
- to hear both sides of the story from the story tellers themselves allowing the mediator to have an holistic view of the issues to be resolved;
- Using Solicitor Mediators. Solicitor mediators are more in tune with the needs of your clients, after all they also deal with or have dealt with clients in the same way that you now do. So start looking at solicitor mediators to meet your needs. You will find solicitor mediators to be approachable, capable of communicating effectively with your client, yourself and the other parties’ legal representative and will have at least a good understanding of the law in general, even it is not their particular area of expertise. There are a number of nationally accredited solicitor mediators and family dispute resolution practitioners you can easily consider by visiting the QLS website.“Failing to prepare is preparing to fail” (Note 5: Quote attributed to Benjamin Franklin)
Prepare yourself, the client and the case
A failure to prepare can apply to the mediator, the parties or their legal advisers. Benjamin Franklin has been quoted as saying “Failing to prepare is preparing to fail” and this is so true of failing to prepare for the mediation process.
Prepare, prepare, prepare! Prepare yourself, the client and the matter. Prepare your client by not giving unrealistic optimism as to outcomes. Discuss what the benefits of mediation are, how it will bring the litigation to an end, how the process may enhance or at least preserve important family and business relationships. Ensure that your client knows there is a difference between the role of a mediator and a decision maker (i.e. a Judge).
Prepare the mediator by ensuring he or she will have all the necessary facts, valuations where necessary, or other information in a timely manner before the mediation.
Ultimately success does not necessarily equal a final settlement at the end of the mediation but it is certainly the goal of the mediator and the hope of the parties. To a great extent the outcome really depends upon the effort contributed to the process by the participants, the legal advisers and of course the mediator. E = S – Effort equals Success. Make sure you apply it and prepare your client to do so as well.
Then you may begin mediation knowing that you have done all you can to assist your client and the process to achieve a successful outcome.