Why do mediations fail? Well generally speaking mediations do not fail, as around 90% of them do lead to a settlement on the actual day, granted a small proportion do settle shortly after the actual day, with the remaining small proportion not settling and failing all together.
In my mediation experience there are a few main reasons which usually are the likely cause for a mediation failing which will be down to the parties, and or their solicitors / advisors, and usually the choice of mediator, and or sometimes a combination of all three.
Why do mediations fail? – Parties / lawyers.
Sometimes parties will go to mediation in bad faith, the main example of this, is usually to comply with a court order stating that the parties must consider and or try mediation, therefore it is just a box ticking exercise and purely to say that they have attended.
I actually have experienced this first hand on more than one occasion, where parties have openly admitted this to me, on one particular occasion I had a mediation which lasted 30 minutes, as the defendants solicitor made it clear he had been instructed to attend on behalf of his client so that they could claim they had complied with the courts instructions to mediate.
His offer as you can imagine was very ill received by the claimant’s solicitor, which was, drop your claim, pay our legal fees otherwise see you in court! Needless to say, not my finest mediator moment, however as I could not compel them to mediate, nor did the defendant really want to mediate, as he did not even attend in person, there was little I could do.
Another key culprit is where the parties and or their lawyers are simply on a fishing expedition which again is very wrong to say the least, they want to illicit information that they would not be privy to leading up to trial and in the course of normal correspondence, needless to say all mediations are confidential, however some parties will try their luck.
Sometimes, which does still amaze me too an extent, is where the parties and or their legal advisors, still confuse what mediation actually is, do not really understand it, I say this surprises me, because whenever I am appointed as a mediator, I ensure the parties fully understand what the mediation process entails and what my role as the mediator is.
This is then reinforced by the correspondence I forward to the parties upon enquiry / instruction, which should answer any unanswered questions, I recall turning up to a mediation and about half an hour into it, the claimant turned and said well what is your opinion, to which I kindly smiled and advised I am not there to offer an opinion as I am completely independent, a frown ensued and he wanted an arbitration, a decision made for him, in his favour of course, to which I advised I was unable to do, and why enter into mediation if this is what he required?
I continued with the mediation, mediating rather than arbitrating, unfortunately a solution was not founded.
Where parties just won’t move, I have mediated matters whereby parties have / have not understood the process, attended in good faith / not in good faith, and are so entrenched, this is my position and I am not moving, which then is or is not met with exactly the same from the other side, whereby neither party will move, despite all the mediators efforts.
Why do mediations fail? – Because of the mediator.
Finally your mediator can be the reason for why do mediations fail, in the minority of cases, I have heard of mediators hindering the process and being perceived as being inexperienced, settlement crazy, trying to impose their views, and simply not being able to lead the parties to a solution.
Therefore to conclude, mediation is a very flexible, informal and successful process, however the parties need to understand what is expected from them, attend in good faith, be willing to compromise and indeed your choice of mediator will inevitably and possibly have something to do with achieving a settlement.