When one day is not enough

While statistics consistently show that the vast majority of cases at mediation result in agreement on the mediation day, around one third do not. So, in the cases that do not settle on the day, how can the mediation process still result in a positive outcome for the parties?   

The role of the mediator in my view is not just a ‘one day’ job, when they are parachuted in to try and resolve a case and then beat a hasty retreat at the end of the day. It is often the work done at the end of the mediation day and thereafter that can make a real difference as to whether settlement can still be achieved.   

So what can a mediator do to try and maintain progress? If settlement has not been achieved parties can often feel deflated and disappointed, and can revert to thinking that the position is hopeless and the only way forward is through litigation. Positions can harden through frustration. 

A potential solution lies in ‘PCPC’ – Patience, Communication, Progress and Closure: 

Patience – the first thing for a mediator to deal with is to ensure that the parties are patient. There is a need for reassurance. A need to encourage the parties to keep the process going forward. Failing to reach agreement on the day is not unusual. 

Communication – it is important to agree as to how communication will continue. Often the mediator will speak to parties’ representatives who can speak to their clients. Alternatively there could be a further mediation day, or the use of conference calls involving the party and their representative. On occasion communication can take place directly between representatives with the mediator ‘sitting in the background’ overseeing the dialogue. Like many things with mediation the communication process can be flexible.  It is important though that there is a clear understanding that the mediation process continues and that the confidentiality and without prejudice nature of discussions remains in place until the mediator brings the process to an end. 

Progress – Remind people of progress that has been made. It is not unusual for one of two sticking points to have arisen, which can often be readdressed when people look at the issue when they are fresh.   

Closure – this is critical in terms of when mediation comes to an end (for same reason as above) and to close, hopefully, the dispute itself by agreement of a consent order or other settlement agreement. 

Above all, it pays to bear in mind that mediation is a process and is not always a one-day occasion. Disputes have often been dragging on for a long period by the time that they arrive at mediation. The surprising thing in many ways is that so many settle on the day itself.

Nick Parker