Never Say Never to a Mediated Resolution

By Thomas M. Blumenthal

I often get well into mediations and think to myself that the parties are so intractable in their positions that they won’t settle. No matter how I try to get them to focus on their interests and not their positions, they want to dig in. I do my best to ignore my negative instincts and keep at it. Most often, the ones I am most convinced won’t resolve actually do. There are many reasons. 

The job of your mediator is not to provide a solution or predict an outcome, but to keep you talking and to remove the impediments to a mutually acceptable resolution. Those impediments fall into five well-known categories; each is complex in nature: 

1. Relationship Issues (emotions and biases – conscious and unconscious) 
2. Structural Issues (unequal bargaining power, time constraints – artificial and real, language barriers)
3. Values Issues (cultural differences between parties that affect the way they negotiate, bargain, and address conflict)
4. Data and Resources Issues (lack of necessary information or resources to achieve resolution, costs, time values, personnel availability)
5. Interest Issues (hidden agendas of what the party really wants to achieve)

These categories are not mine but have been identified by many who study mediation theories. Frequently the signs that a mediation won’t “settle” are signs that one or more of these areas of conflict have not been addressed. 

I recently read an online article from a mediator who said he could tell early on in a mediation that a case would not settle. It confirmed my belief that a barrier exists to many who practice mediation because they don’t persist in addressing each of these categories of conflict. For example, court-based mediators and attorneys often are reluctant to even consider Relationship Issues, particularly emotions, yet the failure to do so dooms most mediations. The urge to get to that settlement frequently impedes the ability of the mediator to assist in resolution. 

The lesson for mediators and parties alike is: Don’t give up. Make sure you delve into each of these areas of conflict before deciding to walk away. Keep talking. Understand what is really wrong or missing. Ask yourself why you are so mad, and how you are contributing to the problem by staying mad. If you want to avoid needless court battles and financial, emotional, and business-based drains on your energy, never say never. 

Paule, Camazine & Blumenthal, P.C. has skilled mediators on staff who can act as neutrals in your dispute and help you and your adversaries come to a mutually agreeable resolution without expensive trials and court time. 

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