Mediation: what is its secret?


The majority of mediations result in a settlement, either on the mediation day or shortly thereafter. So, what is mediation’s secret? Here are five reasons why it may work.

Getting together

Mediation may work because it gets everyone together.

It is rare in litigation that everyone who matters in a case is present in the same building at the same time. By mediating, parties agree to make this happen and that the people who can make a difference will book the day out of their diaries and make whatever travel arrangements are necessary so they can attend.

More than this however, mediation gets everyone thinking about the same thing at the same time: the dispute and how to resolve it. It creates the opportunity and the window for people (including some who may never have considered the case in any detail before) to look carefully at the papers and what others are saying – both in the time leading up to the mediation and on the day itself.

Of course each party also, on the day, meets with the mediator. Such meetings allow people to share their thoughts and fears about the case with this neutral third person who, without advising, uses their experience of litigation and the legal points to challenge positions and explore risks.

Not only this, some or all of the people from each party may also get together on the mediation day. Some may have never met before. Some may have once shared a cordial relationship. During such direct meetings, people may air their legal or factual points. There may be a useful sharing of views, including about what may happen if there is no resolution. The simple act of meeting may break down barriers or dispel an impression that has been formed. It may mean something can be explained from someone’s perspective and heard from another person’s perspective. All of this may open the door to a deal being found, perhaps at the very same meeting or shortly after.

Formal but flexible

Mediation may work because it is formal but flexible.

Mediation is a formal process in that there is a mediator who is appointed on certain terms, a mediation agreement and, if resolution happens, a signed settlement agreement. Such formality gives parties comfort that the mediation is taking place in a certain context and with agreed ground rules. Often it also brings home the fact that being involved in a dispute is a very serious thing and that, unless settled, that dispute is unlikely to just go away. 

Mediation is however a marriage of formality and flexibility. Parties may agree that other connected parties should all join one mediation (or co-mediation with two jointly appointed mediators). As there is no prescribed procedure, it may be agreed that just the lawyers or just the decision makers will meet to try to move matters forward. Parties may agree there is a practical solution to the problem which everyone can live with. All of this means that each mediation can be shaped to suit the particular dispute in hand.

What’s new?

Mediation may work because parties hear and see new things. 

Often mediation takes place early on. Sometimes, proceedings have not been issued. Sometimes, disclosure has not taken place. As a result, it is not uncommon for people to learn new information or see new documents. Sometimes what seems new is simply a better or more detailed explanation, perhaps directly from a potential witness. All of this can help parties understand issues and assess risk.

What else?

Mediation may work because it allows parties to pause and contemplate more than just their legal points.

Parties may think about the time they will need to take out of their lives or businesses to progress the case or that the outcome of a trial may be reported, in the legal press or more widely. They may calculate how much it will cost to get to a trial and the price of wining or losing. They may consider that they would like to try to retrieve a business or personal relationship, or build new ones. All of these wider points may feature when a party is negotiating a deal. 

A short time

Mediation may work because, whatever the length of any trial, it asks people to try and come to a deal within a certain limited time-frame. A ticking clock often focuses minds on the points that really matter to people. 

Conclusion

Although all mediations are different, these five reasons are certainly, in my experience, part of mediation’s secret to success and why so many mediations result in the parties leaving the mediation day with a signed settlement agreement.<