What does a successful mediation look like? Well, the obvious answer you might think is – a settlement! But not everyone agrees.
One such person is Joe Folger, who with Baruch Bush developed ‘transformative mediation’ – an approach where mediation focuses not on solving short-term problems but on effecting deeper changes in interpersonal relations.
Speaking at a conference in Milan, Joe addressed the question of what constitutes a successful mediation, saying the aim of mediation was not to achieve a resolution but ‘to help the parties to enhance their conflict communication’. From the floor, a Sicilian mediator stood and said that if his parties heard this, he could expect to be going for a swim in a pair of concrete boots.
We probably all agree that it’s desirable to improve conflict communications, especially where there is a continuing relationship between the parties – for example, on-going trading or an employment or community dispute. But in commercial disputes what most parties are surely looking for is a deal.
However, and despite the mediator’s best efforts, they don’t always get it. Which can give rise to the question – often mulled by the mediator on their lonely journey home – what, if any, benefit has the mediation had?
Perhaps surprisingly, there are more advantages than might meet the eye…
A truce or a stop-gap agreement
It may be that the best the parties can do is to agree a cessation of hostilities. This short-term strategy doesn’t ‘solve’ the central issues, but it does enable the parties to get on with their relationship pending a longer-term solution.
As an example, a food manufacturer and its distributor couldn’t agree who was responsible for a major and expensive interruption to the delivery of product. However, it was vital to both that the national distribution of foodstuffs continued, so pending a judicial decision and with good grace, they agreed a temporary continuation that enabled them to work together in the meantime.
The start of a dialogue
The mediation process can create a safe space in which the parties can discuss the issues between them more openly. Even if they haven’t settled them by the end of the mediation day(s), they may find they’re able afterwards to continue to explore aspects of the dispute and exchange information.
In one such situation, further investigation of the amounts in the claim after the mediation led the parties to realise that there had been a misunderstanding between them and that resolution was possible.
Bringing issues into focus
A common feature of many mediations is that particular issues emerge as critical that beforehand may not have seemed so important. As information is exchanged and questions debated, even the most astute representatives can find that issues take on a new and unexpected significance. Parties may recognise a new relevance in a particular point and go away to drill down into it. In this way the mediation can suggest an agenda for next steps to be taken.
Recognising that dialogue is over
More than once parties have thanked the mediator for an ‘unsuccessful’ mediation because it has become clear that there’s no point in further discussion.
As an example, a public body had a duty to explore all reasonable steps to enable its contractor to comply with its contractual obligations. In the course of the mediation, it became clear that however much time they allowed, there was no reasonable prospect that the contractor was ever going to fulfil its responsibilities under the contract, which could then properly be terminated.
So – in the absence of an enduring resolution can mediation be claimed as a success? Most definitely! Even if settlement isn’t achieved, parties can come away with a number of valuable outcomes from the process. And mediators need not worry about swimming in concrete boots!
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