The State of Mediation—And How to Make it Better


Have you recently convinced a client that the pain and cost of litigation make litigation a poor choice compared to mediation, only to have the client unhappy with the mediation session? If so, your experience is not unique some experts say.

Questions have been raised recently by commentators in the dispute resolution field about whether mediation generally is living up to its full potential, and, in particular, what might be done to improve both outcomes and satisfaction with the process. This question was dealt with in two national programs I attended this spring addressing the presenters’ perceptions of disenchantment with mediation processes, particularly among clients. There is also a recently published article by mediation guru Peter Adler in a similar vein. Here’s what these commentators are saying and what can be done about reversing any creeping dissatisfaction.

The Commercial Section of the Association of Conflict Resolution in April presented a webinar entitled “Five Failures of Mediation…And What Mediators Can Do About It”. The program was advertised with the blurb, referring to a national landscape: “[a]lthough settlement rates may be high, the level of satisfaction by individual parties to mediation may be at an all-time low.” The speaker, Harry Kaminsky, a longtime trainer with the American Arbitration Association and now an independent mediator and consultant, discussed five “failures” of current mediation practice treated in his article of the same title (http://www.kaminskymediation.com/five-failures-of-mediation-and-what-mediators-can-do-about-it-article): (1) failing to transform positions into interests (which I have addressed in prior columns); (2) failure to probe in depth for and correctly identify each party’s interests; (3) failure to effectively communicate within the mediation process, both in tone and content; (4) failure to negotiate using principled negotiation methods, in that mediators are not guiding the parties toward the four Fisher/Ury Getting to Yes principles of separating people from the problem, working with interests, generating multiple options and applying objective resolution criteria; and (5) failure to use the mediation process to work expressly within the framework of what an optimal resolution would look like.

At the ABA Dispute Resolution Section Spring Conference in Chicago a distinguished panel of mediators and regular advocates in mediation spoke at a workshop entitled “Is the Demand for Mediation Declining?” The consensus was that enthusiasm for mediation had cooled within the area of commercial litigation, largely as the result of bad mediation experiences with ineffective mediators, or from poorly conceived and conducted processes. Root causes include resistance to early mandatory mediation (required in some jurisdictions other than Connecticut) and deficient performance by the mediator due to lack of engagement, preparation or persistence. Solutions suggested by the presenters centered on mediator quality screening and careful process design suited to a particular case.

Lastly, Peter Adler’s article entitled “Expectation and Regret – A Look Back At How Mediation Has Fared In The U.S.”, reports on the results of a survey he conducted among prominent players in the U.S. dispute resolution field. http://www.mediate.com//articles/AdlerExpectationandRegret.cfm. Adler’s analysis deals primarily with his finding that “most of the people I interviewed talked about a loss of first principles and an erosion of the fundamentals [of the mediation process] articulated three decades ago.” Participants, including many mediators, see mediation as a “numbers game,” and “a race to the bottom line…just move the case.”

If these leaders in the field are on to something, which I believe they are, attitudes toward mediation as a means of dispute resolution for complex disputes could benefit from a refreshed examination of how to improve the possibility that a given mediation will produce a resolution most satisfactory to the participants in terms of both outcome and process.

The principal concern that these commentators express is that users of mediation (primarily lawyers who guide their clients in the process) do not yet fully accept the value and effectiveness of the time tested interest-based (“Getting to Yes”) approach. Advocates engage in narrow positional numbers-driven bargaining within in an evaluative framework, often late in the litigation process. Mediators, in turn, are not doing as much as they can to become trained in and implement an interest-based process addressing what matters most to the participants and leaving them more satisfied.

Drawing on these insights, counsel can create real opportunity for both their clients and themselves. Positive experiences with an approach to negotiation and resolution envisioned by Kaminsky can help reverse any lack of confidence in the effectiveness of mediation identified by Adler and the ABA panelists. Lawyers will come to realize more fully that there is tremendous potential in a process conducted by a mediator who exhausts an examination of interests, and who can, as necessary, take a more directive approach to keep the parties moving forward. The archetype becomes the interest-oriented mediator who is patient and persistent, working within a negotiation framed with the optimal resolution clearly in view. Optimal in this context means satisfaction of interests to reach a settlement that goes beyond one based solely on positional give-and-take.

The key here is to move away from an approach to mediations as quasi-arbitrations or pretrial conferences, where the mediator leans on (or worse) the other side to extract a resolution (affectionately known and the “butting heads” approach). That approach might “work” to reach a settlement, yet this is the very kind of process that can be the cause of the dissatisfaction, primarily among clients, noted by the expert observers. Non-lawyer parties to the mediation pick up that there is something missing, which there is, when the endgame becomes a contest of bluff and bluster as opposed to working toward something that most fully incorporates the interests of everyone at the table.

As a mediator convinced, both by the commentators and by my own experience, of the importance of overcoming the “five failures”, I see the opportunity for improvement in almost every mediation. Mediators can encourage both lawyers and clients to entrust themselves to a process that has no downside – because there is no settlement without agreement. And there is much greater upside, in terms of both likelihood of success and satisfaction with the process itself, than comes from purely adversarial bargaining.

That does not mean there is no place for hard bargaining or mediator assistance to the parties through evaluation or reality testing. Before that comes into play, the parties and the mediator should work to develop a foundation for resolution that recognizes any interests that can be served and puts the parties in a position to craft a settlement that addresses the core of the dispute. The mediator then can take any appropriate steps to help remove final barriers to a resolution that integrates the most value attainable, including elements in addition to money.

If, notwithstanding these efforts, a settlement has not yet been reached, doggedness and resourcefulness become ultimate virtues. The mediator should make plain that the process is not over as long as one party does not refuse to continue. Revisiting and probing what the parties have identified as being fundamentally at stake can yield a settlement that ends the dispute with all participants having engaged in a rigorous process designed and carried out to satisfy what matters most.