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When Mediation Fails

As a firm believer in mediation, I would like to outline my experience of when mediation works. There are some crucial variables in determining whether the mediation will succeed or whether it will fail.

Whilst there are some variables such as costs, the time frame of the mediation(how far advanced are the parties into the (possible) litigation, from experience when all is said and done there are ultimately only two variables which matter and determine if the mediation fails or succeeds?

1. The Desire of the Parties(including the Lawyers) to Settle - Mediation is a consensual process meaning that if you do not want a settlement you will not have a settlement. A crucial factor in determining whether a settlement will be reached is if the parties want to reach a settlement. As we will see below the mediator will play a crucial part in this. If parties have paid the money for a mediator and have paid for a lawyer to help them, then they should have the desire to settle. However, it does not always work like this and I have come across the rare lawyer who can actually disrupt the process.

2. The Mediator. The Role of the Good Mediator is to try to overcome problems and help the parties to reach a settlement. Too often I have seen parties agree to instruct a mediator who does not have the ability to overcome problems. I can remember a mediation failing as he was unable to get one of the parties identify the weakness in his or her case, but if I look at what makes a mediation likely to fail is the lack of skill in confronting what we could call an errant party. I have also seen the good mediator calmly and incisively placing the issues before the parties so thet can see the strengths and weaknesses in all their glories. Essentially the key reason why the mediation fails is the inability of the mediator to get all the parties to see the issues.