If you measure effectiveness by the percentage of mediated cases that result in an agreement during the mediation or shortly after mediation “success rates” are usually 80% to 85% or even higher.
This varies depending on the type of mediation and the issues being resolved.
If you consider mediation’s purpose is to facilitate communication between parties to a dispute it is 100% effective if you participate and really engage in the process of trying to resolve the dispute.
When does mediation fail to be effective?
Lack of preparation
If reaching an acceptable outcome in mediation requires a compromise you need to know what your alternatives are to reaching agreement. You might not love what is on the table and if you don’t know what your other alternatives are you might have an unrealistic idea of what your other options are.
At Interact Support we ensure that you participate in a comprehensive pre-mediation process to help make sure you have considered what you want and also your alternatives. Your mediator won’t provide you with legal advice but they will help you to identify gaps in your knowledge. Sometimes people don’t get advice about the best and worst case scenario if they don’t reach agreement in mediation. You should seek to get an understanding from a lawyer what would happen if you went to court. What is your best and worst likely outcome, what would it cost you terms of time and money?
Not knowing what you are risking may result in not reaching an agreement in mediation and ending up spending years in court and coming out in a much worse situation than what was on the table during mediation.
Strategic / tactical
It is very common when you are in conflict with someone to assume the worst of the other person. It can happen that people just go through the motions because they are advised or believe that they will do better in court or are trying to buy time because they know that they will be worse off once the issue is resolved.
Sometimes people start the mediation process with a secret intention of holding out and not reaching a resolution. They may change their mind during the process when they realise that it is worth resolving the dispute.
What is discussed in mediation or proposals made in mediation are not enforceable so it makes sense to participate in mediation to gain a better understanding of what they want and give them a better understanding of what you want.
Waiting too long for mediation
Mediation is ideal to attempt first before resorting to more adversarial approaches. This is because the longer the dispute goes on the more it is likely to escalate leading to anger and upset and a desire to make the other side pay for that. Waiting till you run out of money to mediate puts you in a weaker negotiation position than you would have been if you had just seriously engaged in mediation right from the start.
Mediation typically costs a small fraction of the cost of going to court, has a high success rate in terms of an agreement being reached and even it if isn’t you’ll know where you stand in relation to the issues.
Sometimes some of the issues can be resolved, reducing the size of the problem and if the solutions found are implemented it can build up goodwill and lead to resolving the rest of the issues. Even if you do have to go to court or a tribunal, having clarity about what the issues are and what each side wants will save a lot of time and time equals money when you are legally represented.
If a settlement is not reached – What then?
According to the National Mediator Accreditation System (NMAS) “Mediation is a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.
As it is up to you whether you reach an agreement not reaching an agreement can’t be described as a failure if you have developed and considered options and made decisions.
Sometimes those decisions are to get more information before resuming the mediation process.
Sometimes people realize that their expectations are never going to be met and have to take a bit of time to rethink what they can realistically achieve.
The mediation may prove to be a catalyst for a change to the dynamic and a better future outcome than would have been achieve without the effort to resolve the dispute in mediation.
What have you got to lose by not choosing mediation as your first approach to resolving disputes?