Why is Mediation So Successful?

This is a question I am often asked but to which there is no short answer. Where success is achieved at mediation it will be because of a number of different factors, all of which combine to have made it possible to achieve a consensual agreement where previously the parties have been unable to do so.

Where parties agree to go to mediation their chances of reaching an agreed settlement are greatly increased. It is difficult to say what percentage of mediations end up with a settlement agreement, because no statistics are available as far as I know. But I believe most mediators would agree that a success rate of 70% would not be overstating it.

In most cases where mediation has been successful, both parties leave the mediation with a sense of relief, knowing that their dispute has been resolved more quickly, less expensively and with far lower levels of stress. This is in stark contrast to how most parties feel after a court decision.

Another great reason for reaching dispute resolution through mediation is that finality is achieved. In contrast, the winning party after a court decision will always run the risk that the losing party will file an appeal, which adds significant further delay, expense and stress for both parties.

Ingredients for success:

1- Mediation is a voluntary process:

The parties in dispute have chosen to try and settle the case through mediation. The benefits of mediation will have been explained to them. This voluntariness greatly enhances the chances of settlement because the parties are willing participants in the mediation process. Their positive mindset makes all the difference, and is in marked contrast to the mindset of most litigants as their trial date approaches, which is usually one of fear, stress and apprehension. In the case of litigants facing a trial date, no matter how good a case they think they have, they have no guarantee of success. In addition, even if they win, there is always the possibility that the losing party will lodge an appeal, causing further expense, delay and worry.

2- The parties are in control of the Mediation:

  • The parties choose the mediator, unlike in litigation where you do not choose the judge.
  • The parties can choose an early date that suits both them and their advisers.
  • Either party can leave the mediation at any time, and bring it to an end.
  • The parties may, if they so choose, not meet each other at the mediation.
  • The parties control the outcome – no outcome will be imposed upon them by some third party i.e. a judge.
  • The parties themselves decide upon the terms of any settlement they reach.
  • The parties can achieve terms of settlement that they would never be able to achieve by winning the case in court, whereby both parties can come away with something advantageous.
  • The parties avoid the binary result where in most cases a judge decides that one party wins and the other loses.

3- Choice of an independent and neutral Mediator:

The parties will choose and agree a suitably qualified, experienced and independent mediator to help them to achieve a consensual settlement. The skill, experience, independence and integrity which an accredited mediator will bring to the mediation process are important ingredients for the parties’ success.

The chosen mediator must be independent of both parties in the dispute. In other words he/she should not have any conflict of interest, and no family or prior professional relationship with either of the parties. Independence is a core principle which will be observed in any mediation, and is a key ingredient for success.

Independence guarantees to each party that their chosen mediator is a neutral third party who can and will assist the parties to achieve a consensual dispute resolution in a completely objective, non-judgmental and neutral manner. The mediator will have no agenda of their own, and will not have any pre-conceived idea of who is right and who is wrong in the dispute, or how the dispute should be resolved. The mediator’s role is to assist each party in an even-handed manner to discover a fair and equitable solution that best addresses their individual interests.

The mediator’s independence and neutrality ensures that a relationship of trust is quickly created between each party and the mediator, so that each party knows that within the private confines of each room at the mediation, what is said to the mediator is said in the strictest confidence, and will not be disclosed to the other party without their consent. This relationship of trust between each party and the mediator is one of the most important ingredients for success at mediation.

4- The Mediator’s skills:

The skills which an experienced accredited mediator will have are also an important ingredient for success for the parties. The mediator will not devise a solution for the parties, but rather will assist the parties in a non-judgmental and impartial way to explore possibilities for dispute resolution that will fairly meet the parties’ realistic expectations and their vital interests.

The mediator will build a relationship of trust with each party. The mediator will have excellent interpersonal and communication skills. Active listening is a vital skill. This involves not just hearing the words being spoken, but also hearing what lies beneath the words. In most disputes there is more going on than what may appear on the surface. Most disputes that become unresolved conflicts have a high emotional content such as anger, hurt, insult to name a few. It is often this emotional content that is hindering the parties’ ability to find a resolution to the dispute. The mediator will be able to assist the parties to deal with the emotional content in the dispute in order to focus on finding a positive way forward.

Using his/her skill of active listening and displaying real empathy with each party, the mediator will be able to help each party to feel understood, and in a completely non-judgmental way. This helps to build a relationship of trust, so that each party will feel able to speak openly and honestly to the mediator about what really matters to that party.

5- What happens at Mediation remains confidential:

There are many types of dispute where a party, or both parties, would prefer that the details of their dispute would not run the risk of becoming public knowledge. Mediation is a private and confidential process and removes any risk of publicity. Disputes between family members would be an obvious example. Parties involved in employment disputes involving for example allegations of harassment, discrimination, bullying may well prefer to be able to air/defend such grievances in a private setting which avoids the risk of reputational damage to either party that a court hearing would entail. Similarly, parties to many commercial disputes may not wish commercially sensitive information about their businesses to become public knowledge in a court hearing. These are but three such examples. There are many other types of dispute where parties may choose the advantage of keeping the dispute private in the confidential setting of a mediation.

6- Mediation is ‘without prejudice’ to the parties’ entitlement to continue the litigation:

While mediation is undoubtedly an ‘Alternative Dispute Resolution’ process, I prefer to see it in terms of being a complementary dispute resolution process. It is not a question of ‘either/or’. In many, if not most, cases a plaintiff will have commenced legal proceedings well before any mediation takes place. The plaintiff’s solicitor, as required by section 14 of the Mediation Act, 2017, will have fully advised the plaintiff of the advantages of mediation as a means of trying to resolve the dispute without going to court, before the proceedings are commenced.

But the reality is that many disputes will simply not be ready for a mediation at a very early stage in the dispute. For example, it may be a case where expert reports must be obtained before any settlement can be explored, or perhaps discovery of necessary documents in the possession of the other side must first be sought. These are examples of cases where proceedings need to be commenced, if for no other reason than to stop the Statute of Limitations running against the plaintiff.

Nevertheless, even where court proceedings have been commenced, the parties can agree at any time prior to the case being heard in court, that they would like to explore the possibilities for settlement by way of mediation, rather than leave it to a judge to decide the outcome. It is important that all parties would understand clearly that where they agree to mediation in such circumstances, they are not giving up their entitlement to have the dispute resolved by a judge. They will be advised by their solicitor that if the mediation is not successful in resolving the dispute by agreement, they are free to continue with the court proceedings. It is in that sense that the mediation is ‘without prejudice’ to the court proceedings, and nothing that happened as part of the unsuccessful mediation may be referred to or relied upon at the subsequent court hearing.

So, even where the mediation is unsuccessful, nothing has been lost in terms of the litigation by having attempted to reach an agreed dispute resolution through mediation.

7- The lawyers’ vital role in Mediation:

Each party will have their solicitor present, and often counsel too. This ensure that if a settlement is reached at the mediation neither party signs the agreement without having had the benefit of independent legal advice. An important principle of mediation is that the mediator does not provide legal advice to either party.

Apart from providing legal advice to their client, lawyers present at the mediation can play a critical role in helping the parties to achieve a fair equitable resolution of the dispute. Bearing in mind that their client has already agreed to try mediation as a means of dispute resolution, their lawyers should also adopt a positive approach to the mediation process also. Litigation is always an adversarial process where the lawyers acting will be focussed on winning the case. They may often have advised their client that they have a good chance of achieving a victory in court. That indeed may well be good advice.

Nevertheless, it will be helpful at mediation if the lawyers adopt a less issue-focussed approach, and encourage their client to focus on trying to settle the case in a fair and equitable way. This will in most cases require some move away from some fixed positions that  adopted in the litigation up to that point. It is most helpful to the chances of success if the parties’ lawyers encourage such movement in the greater interest of settling the case instead of fighting it to the death in court. In this way lawyers can be a vital ingredient for a successful outcome for their client.

After all, as often said in mediation circles: “The best settlements are those where neither party gets everything they were looking for” or as stated less prosaically by Kenneth Coke recently in his book: Dance of Opposites: “A greater victory is achieved when it ends in nobody’s defeat”.