The mediation which appeared to be close to settlement failed (and ended my 100% settlement record!) – and as I realized long ago, you learn a lot more lessons from a single failure than from many successes.
Following are the main reasons why this mediation failed:
- Parties had a new incident between them during the week between mediations which aggravated the relatively amicable situation that existed after the first mediation
- Parties seemed to have spoken with their attorneys who appeared to have advised them to become non-negotiable in certain areas
- The set up for the second mediation was such that I was located in the main room and the parties were in adjacent rooms. I found out within about 30 minutes into the mediation that both parties were able to hear the supposedly private conversations that I was having with the other party and getting unnecessarily aggravated. Once I realized that, I moved them to a room further away but by that time the atmosphere had got somewhat vitiated, with one the parties threatening to walk out of the mediation because of hearing what the other party had said to me in “private”
- Coming to walking out issue, one of the parties routinely threatened to walk out of the mediation, every time he heard of any proposition from the other party with which he did not agree finally leading me to inform him that he would be in violation of the court order if he quit the mediation before I confirmed to both parties that the mediation was over
- For some reason, both parties started acting as if I were convinced about the “rightness” of his/her position, then it was my job to convince the other party, forgetting the fact that I was there only to facilitate them in convincing each other and reaching an agreement
- Finally, both parties appeared to have been convinced by their respective attorneys that he/she would win big if he/she went to court – and while I had a pretty good idea as to who was in the weaker legal position, I could not given them my legal opinion.
Bottom line – I realized that having attorneys in the shadows (rather than at the mediation itself) was the worst of both worlds. And that certain matters were not meant to be settled but had to be adjudicated by a judge and only after that ruling will at least one the parties come to his/her senses and would be wishing that he/she had been more reasonable and settled the conflict during mediation.
In any case, both parties gave me feedback that they were happy with me as a mediator – and one of the parties even called me later and asked about doing another round of mediation (which I believe would have been a futile exercise in this particular case).