Allan J. Stitt
Mediator and Arbitrator
President of ADR Chambers and Stitt Feld Handy Group
I suspect that this article is not about what you think. It is becoming common for people to refer to a mediation that doesn’t result in settlement as a “failed mediation”. I would like to suggest that the term “failed” is not the appropriate term for a mediation that does not settle. A mediation that does not result in settlement is a mediation that does not result in settlement. But in the vast majority of cases, that mediation is far from a “failure”.
Similarly, success in mediation should not be defined by whether the case settles. When I am asked about my success rate in mediation, my answer is that 100% of my mediations are successful; they just do not all settle.
A mediation can fail. If the parties leave a mediation in a worse position than when they arrived, that would be a failure. If the mediation process is not structured so as to allow people to get the information that they need to make an informed decision about whether to settle, that would be a failure. But whether the parties reach a settlement should not determine success or failure.
I think we need to start by re-examining the mediator’s role. I tell parties as part of my opening remarks at mediation that my role as a mediator is not to try to get a settlement. My role is to facilitate the negotiation that parties are having to allow them to make an informed decision about whether they choose to settle on terms that are offered by the other side. I mention that I am not impacted by whether they settle (and, in fact, I do not keep settlement statistics for my mediations for that reason) and I do not have either a desire for parties to settle or a desire for them not to settle. I am indifferent about settlement. I just want them to make the best decision that they can.
I have mediated numerous cases where I have told the parties that I agreed with their decision that settling the case was a bad idea. For example, a builder in a dispute with his contractor could be involved in multiple projects and may want to get a precedent in the case that I am mediating, to help the builder in the other cases. I would explore with the builder whether the facts of the case I am mediating are the facts that the builder wants before a judge, and if they are, I will support the builder’s decision not to accept a settlement offer from the contractor. For that builder, a settlement would be a failure and success was moving forward with the case.
I have mediated other cases where one party (Party A) is not prepared to make an offer to the other party (Party B), within the zone of what I think a court could reasonably conclude. In that type of situation, I would not disagree with Party B that they would be better off going to court than agreeing to a bad settlement (though sometimes, even in those types of cases, parties prefer to settle because of the non-monetary benefits of putting the litigation behind them.
So why is it, then, that parties to a mediation so often think that the mediator is pushing for a settlement rather than helping everyone make the best, informed decision they can? To be fair, one reason may be that not all mediators approach mediation the way that I do and some mediators do push for settlement because they believe that a mediation is only a success if it results in a settlement.
But it is not just a phenomenon in other mediations. Many people in cases that I mediate believe that I am pushing for settlement. And in a lot of cases, they are correct in their perception that I think they should settle. But not because I think mediation is a success if the case settles; I think they should settle when I think a settlement is a better result for them than going before a judge (or an arbitrator) and getting a result that they cannot predict. If that is the case, I tell them so.
In my experience, the vast majority of disputants over-value the likelihood that they will succeed in court because they deeply believe that they are correct, and that fairness and justice is on their side. Their brain convinces them that any reasonable judge (or arbitrator) will recognize the folly of the other side’s arguments, and will see the strength of their case. They believe that they will be believed (because they “know” that they are telling the truth) and the other side will not be believed (because they “know” the other side is lying).
Because I did not live the case the way they did, I can look at it differently and, frankly, more objectively. I am never focused on who is right and who is wrong, but rather on the risks and arbitrariness of a trial or arbitration. I know that a good liar is more successful in court (or arbitration) than a bad truth-teller. And I also know that both parties usually believe deeply that they are telling the truth. I know that a judge can make mistakes. And I often can see strong arguments on both sides (though I admit some often strike me as stronger than others).
I therefore encourage the parties to settle when I think that is the best decision for them, and I discuss with them why I think their best decision is to settle.
So how can a mediation be a success if the case does not settle? There are a number of ways: first, people may leave the mediation with more information than when they arrived. They may better understand the case that the other side is arguing and will often have a better sense of what the other side is prepared to offer in order to settle.
Second, the parties may have started discussions that may lead to settlement at a later date, and that settlement is likely to occur earlier than it otherwise would have if mediation had not taken place.
Third, the parties may have developed a rapport and a way to communicate that may help them both to resolve the current dispute and, in cases like a construction project where the relationship may be ongoing after the dispute is resolved, to work together to resolve issues in the future.
And fourth, they will now know that they have made their best effort to try to settle the case, with the help of an expert mediator, and can move forward knowing that they have tried.
So, the bottom line is that we cannot judge a mediation by whether the dispute settled. That is not the definition of success. A mediation is not a failure if the case does not settle, and the decision not to settle may be the right decision by the parties, as long as it is well thought-out and informed.