Earlier this month, I attended a mediation as an observer, that is, to watch an experienced mediator ply her trade and possibly pick up some strategies from her that I could  apply in the future.

Being bound by confidentiality, I cannot reveal the details of the mediation but In a nutshell, this was a family matter where the divorce had happened in 2003 but there was still ongoing litigation involving a laundry list of issues due to the high conflict nature of the couple.

It became apparent to me within the first hour that the serious stumbling blocks would be the matters of custody and possession and it appeared to me quite futile to continue.   However, the mediator kept persisting by skillfully addressing all other issues and was getting agreements on each one to the point that one of the attorneys started preparing a Mediated Settlement Agreement.

However, at the end of the day, as I anticipated, the parties completely disagreed on the matters of custody and possession and the mediation ended in a “failure” and no agreement (not even partial) was signed by the parties.

So the question was whether we unnecessarily wasted the whole day by persisting with the mediation despite the seemingly insurmountable obstacles to a successful mediation OR by getting the parties to agreement (although not signed off) on a whole bunch of issues, we left them in a better place to potentially reach a reconciliation before the trial they were scheduled to attend few months down the road.

That is the kind of call (when to hold and when to fold) that each mediator has to make during every mediation and I realized that being able to make that decision more accurately than most is what differentiates the great mediators from the just competent ones.