Mediation - What's It About, and Why Does It Often Lead to Failure?

Contrary to popular belief, legal disputes do not always have to lead to a lengthy court battle. Instead, parties can use an alternative procedure known as mediation to resolve a dispute.  

Mediation is an informal process convened and run by a neutral third party (also known as a mediator) to settle disputes without going to court. Mediation is entirely within the control of the disputants, it is voluntary, and for a session to go ahead, both parties must agree to attend.

Mediation is "without prejudice" and cannot be used against the other party at a court hearing unless a legally binding agreement is made. Therefore, it is valuable for parties to negotiate in good faith and work towards a mutual agreement. However, mediation does not come without its pitfalls and is often not successful. 

However, mediation is by and large successful. Mediation is also suitable for plaintiffs because it reduces costs and could expedite the matter substantially. However, As mentioned above, there are cases where mediation may fail. What are the reasons for its failure, and how can it be avoided? 

Emotions 

Emotions are almost an inevitable part of the conflict. However, there may be instances where one or both parties' strong felt emotions may cloud rational thinking and affect the overall process. 

Parties are sometimes more ready to achieve a resolution if interventions are attuned to the process and the changing circumstances of the parties.  

Once a mediator identifies the parties as being under the influence of high emotions, the mediator must be able to determine the appropriate way to lower the temperature effectively. The mediator must be well trained in achieving a high level of emotional self-awareness and then identifying and adopting appropriate strategies to deal with the parties. 

Lack of preparation

Preparation is key to the mediation process. Ideally, both parties and legal representatives should discuss their approach, consider all options and alternatives for successful compromise, and write down all possible issues and responses their ex-partner might want to discuss. However, suppose the parties are not thinking of and writing down every potential problem and solution. In that case, this may set them up for an unsuccessful mediation.

To adequately prepare for mediation, the parties should:-

• Be informed and be prepared to attend the mediation as frequently as required.
• Review and ensure familiarity with all evidentiary materials related to the case beforehand.

The wrong team 

The third primary source of failure is often a subset of the previous source: a lack of preparation. Mediation generally works when there is good chemistry between the negotiators. Therefore, parties must engage a negotiator to act on their behalf who has the authority to act and is accustomed to making tough decisions and negotiating satisfactorily to achieve the desired result. 

Conflicting opinions from experts

Depending on the case's merits, there may be the need to engage experts for opinions. In some matters, expert opinions may be contradictory, subsequently leading to the failure of the mediation process. 

Below are various mechanisms that parties can adopt to resolve conflicting opinions:

• Neutral experts could be considered during mediation;
• The parties can agree to compile a joint expert report;
• The respective experts should convene a meeting and discuss the facts in dispute and common cause; 
• The experts could be allowed to attend mediation;
• Identify the difference in opinions and agree to negotiate despite this (with this option, one or both views will be either partially or wholly accepted/rejected).

Inflexibility from either party

As with all other forms of negotiations, inflexibility is a major issue. This is worsened if each party has its own fixed idea of the resolution. During the first mediation meeting, each party will disclose their version of events to the other for the first time. This could have a positive effect, i.e. it could bring the parties to common ground, or it can further exacerbate the dispute.  

To give either party the highest chance of reaching a joint resolution, the legal representatives of each party must explain the position to the parties thoroughly.

Different agendas

A bit of giving and taking is necessary for successful mediation. For example, suppose parties are in high conflict over specific issues that the parties cannot resolve clearly. In that case, this may lead to mediation failure. It is vitally important that all issues relevant to the dispute be disclosed beforehand. 

Sometimes, a party may have ulterior motives, making mediation extremely difficult. It is important that the parties identify and agree on the key issues to discuss and the ambit of the mediation prior to convening the meeting.  

Sometimes, mediation may not be appropriate for all situations, and approved mediators have a procedure for assessing the suitability of clients for mediation.  

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