Mediation is a process of change. It is a transformation, and like all transformations, it takes time. Through this process, perceptions change, and this does not happen in a nanosecond.

So, unless carefully orchestrated, a mediation will not result in a settlement. Too many things can go wrong.

I make these comments because my husband had a mediation the other day. When he told me that it would not start until 3:00 p.m. and the defendant left work at 5:00 p.m., I had the sinking feeling that the matter would not be settled.  It did not, although a second session is to be scheduled. (Such a lapse of time between sessions brings on its own issues, allowing for a change of mind by the parties if not backsliding.)

So, what can go wrong in a mediation that prevents it from settling?**  There is a time barrier: people must leave at a specific time, or the mediation is set for a certain number of hours and no more.

Alternatively, there may be a lack of information sharing, which prevents a party from making a decision. Or, one or more of the parties have become rather personal, using threatening language against the others. Or the demands and offers are unrealistic, so that even trying to use brackets is fruitless.

Then there are the cognitive aspects.  Each party is exaggerating the conflict and making every issue a mountain out of a molehill. Or each party has the utmost confidence in winning their case at trial despite its weaknesses. Because the negative information comes either from the mediator or the other side, they refuse to give it any credence (i.e., reactive devaluation) or they are extremely averse to losing, and because of a sunk cost bias, keep going forward despite mounting losses in time and money.)

Cultural differences may prevent a matter from being settled. The definition of “fairness” varies significantly from culture to culture.  Also, legal systems vary. I have witnessed this when parties from other cultures attend mediation, not understanding our legal and court system.

And then there is Father Time: there is not enough of it, or because of time, decision-makers can be present only by telephone, email, or text. They cannot be where it counts: at the mediation.

When you think about it, settling at mediation is like running an obstacle course: many things can get in your way, keeping you from reaching a successful outcome.

…. Just something to think about.

**The various reasons why cases do not settle were taken from Frankel, Douglas N., and Stark, James H. The Practice of Mediation (3rd ed., Wolters Kluwer, New York, 2018), pp. 301-305.

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