Hard truths about mediation- Why some mediations fail
Using mediation to resolve disputes is most effective when parties are fully committed to the process. However, sometimes commitment alone will not suffice. In this issue, we look at common reasons why mediation may not result in settlement.
1. Lack of authority to settle
Parties have agreed on the terms of settlement. One party declares that he has to get the confirmation of his Managing Director. The Managing Director who was not present at the mediation refuses to endorse the settlement.
This is one of the more common reasons why mediations fail. The key decision maker, often the Managing Director or CEO, does not attend the mediation and sends a representative with a limited mandate instead. As such, the key decision maker does not hear the concerns of the other party nor participates in discussions to resolve the dispute and remains unconvinced of the need to compromise or settle the dispute. Parties walk away with the other side feeling that mediation was a waste of time.
2. Unprepared for mediation
Parties come for mediation without any preparation. They come hoping to hear what the other party has to offer and to make a decision there and then.
Like any other dispute resolution process, parties and their lawyers must prepare for mediation. Parties should identify the issues in the dispute, be alive to the strengths and weaknesses of their own case and have realistic expectations during mediation. Parties must also be able to show why they are entitled to what they want. For instance, using objective standards to justify claims will be more persuasive to the other party. Last but not least, coming to the mediation with possible solutions will strengthen the chances of a settlement.
3. Wrong time to mediate
When mediation takes place too early, parties may not have all the information at hand. Conversely, if mediation is held very late along the litigation time-line, parties may feel that too much has been invested into litigation.
The optimal time to mediate is as soon as sufficient information is at hand to help parties meaningfully evaluate proposals that may be made by the other side. Even if the first attempt at mediation fails, parties should be open to future mediation sessions when they are clearer of their positions and that of the other party’s.
4. Inappropriate mediator
Often, parties choose a mediator because of his or her stature or standing in society or a profession. However, the person may not be trained in mediation skills and may not have the temperament to conduct mediation.
It is imperative to choose the right person to mediate a dispute, to maximise the chance of achieving a settlement. This involves selecting a trained mediator, with the right balance of emotional quotient and problem-solving skills. In addition, in highly technical disputes, parties may want to combine these soft skills with industry knowledge and experience.
5. No sincerity to resolve the dispute
Parties use mediation as an arena to launch personal attacks on the other party or as a fishing expedition to find out more about the other side’s case.
To maximise the chance of succeeding, disputants must come to the mediation table in good faith. They must be willing to invest their time and energy to work towards resolving the dispute.
Over the last 19 years, the Singapore Mediation Centre (SMC) has been dedicated to helping parties resolve disputes through mediation. With our experienced case management team and mediator appointment service, about 72% of cases at SMC have been successfully settled, of which, 90% of cases have settled within a day.
For more information on mediation, please visit www.mediation.com.sg
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June 2016 Issue. For past issues, read more here.