We’ve all heard it said that a successful mediation is when “everyone leaves unhappy”. Certainly, the expression is intended to convey that sometimes to make a mediation work, the plaintiff gets less than they expected to receive, and the defendant pays more than they expected to pay- so everyone is unhappy. Such a sentiment may be true, but there are many metrics to establish whether a mediation has been successful.
Of course, the main intent of a mediation is to settle the parties dispute. Many would say that the final resolution of the conflict is the only goal of a mediation and if the parties settle, that’s all that matters. But in certain circumstances there are inherent elements within the process of the mediation itself to measure the true success of the resolution. A few of them include the following:
- Shared Communication.
Sometimes the only reason a dispute finally settles at mediation is that for the first time the parties are able to confront each other in a setting where they can verbally air their positions and arguments. Separate from any pleadings, discovery, depositions or motion practice that may have come before, mediations allow the parties to directly vocalize their claims against the other party, to essentially “have their day in court” without waiting for the trial. It is often the release of emotions while in mediation that finally will trigger the next step of moving towards closure. But for the opportunity to “be heard”, the dispute would not otherwise have been resolved.
One of the most significant aspects of a mediation is that there is no judge or jury to make a decision. During a mediation, the parties are given the right to control their own destinies regarding the dispute. So, for the first time since the conflict began, the litigants are finally asked what they “want to do”, instead of being told that they need to answer questions in discovery or need to respond to motions. It is the first time where they may feel a direct investment in the process and therefore ultimately understand that it might be the last time where they can personally control the outcome. Having a sense of control within a process that otherwise may seem uncontrollable may be the difference between a dispute that can be stopped or continues.
It is absolute that one of the most important elements during a mediation is that there is a demonstration of mutual respect by the parties during the process. Even if one side vehemently objects to the claims being brought, in that the law allows parties to bring claims, the respondent must be willing, if nothing else, to respect the process of “civil” litigation. Sometimes, just the ability of one party to present its claim without interruption or objection from the other side, may be the trigger to allow the parties to work toward resolution.
It goes without saying that it is unlikely there would have been a dispute to start with if the parties were otherwise able to cooperate to resolve the conflict. In mediation, sometimes the parties are able to create solutions that require mutual cooperation, such as agreeing to payment plans, having to sell property to obtain liquidity or even re-establishing a working relationship to complete a project. Whatever the action may be, the mutuality of recognizing that sometimes there cannot be a solution without joint cooperation (as compared to individual defiance) can be the missing element needed to solve the problem being confronted.
A mediation that includes these four elements should ultimately lead to a successful mediation. Where the parties, after recognizing that they are in an environment conducive to resolution, can leave the mediation not only knowing that they are now free from the time, expense and stress of the past dispute, but feeling as if they were active participants in the process of creating that solution.
For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at [email protected] or 404-364-4626