Mediator’s Moment—Obstacles to Successful Mediation

by C. Jean Stewart

A successful mediation requires that the parties feel satisfied both with the process and with the outcome. Several obstacles can interfere with the parties reaching satisfaction on either or both standards. Counsel often contribute to this failure. Here are some tips on avoiding these disappointments and helping clients achieve a satisfactory outcome.

1. Reluctance to participate. One obstacle to successful mediation is the failure of parties to engage in a meaningful process. Some are fearful that discussing the issues underlying litigation could be perceived as a sign of weakness and hence adopt intransigent positions that yield no room for meaningful exchange. Unfortunately lawyers can sometimes get caught in this trap as well. Particularly in emotionally charged litigation, where attorneys come to identify with their clients’ positions, counsel may decline to work cooperatively on peripheral issues or even on the primary conflict in the case because of concern that talking about the dispute itself will undermine their litigation posture. In my experience, calmly and rationally explaining to opposing counsel/parties why and how one has come to a position rarely if ever diminishes the argument and, in fact, often contributes to the other side’s better understanding of the conflict and, ultimately, to resolution.

2. Misunderstanding of Opposing Party’s Position. One of the most common obstacles that I see in mediating estate and trust cases is a complete misapprehension of the feelings, attitudes and positions of the other side. Unfortunately, many attorneys contribute to this roadblock. As part of my preparation for mediation, I require both counsel and the parties to present brief statements of position. In too many mediation statements, I learn that the arguments and positions expressed are based on a total misunderstanding of what the other side is thinking and has expressed to me in their presentation of the case. It is hard to overestimate how many times I have been told “We want to settle but the other side doesn’t” – by both sides! As a mediator, I work hard to get the parties and their counsel to devote appropriate time to active listening in advance of or during the mediation session to try to separate these misunderstandings from reality.

3. Negotiating Styles. While almost everyone has had some life experience with negotiations, even if only in the experience of raising children (think toddlers and teenagers), many people, including many lawyers, have immature notions of the theory and practice of negotiations. When parties and their counsel are spending a majority of their time focused on how to negotiate, they frequently lose sight of the important issues in the mediation and fail to reach a resolution that meets their needs and puts the litigation to rest. Parties and lawyers who cling to notions about the effectiveness of techniques like “we refuse to make the first offer,” or “if we offer ‘x’ they will counter with “y” and then we will offer “z”, etc., etc. or “this is absolutely our last offer,” are often relying on inappropriate notions of what contributes to effective negotiation and have lost sight of the real issues and personalities in the case at hand.