As a mentor of mine used to quip, mediation is as easy as “C-A-K-E”: commitment, authority, knowledge and expertise. Experience shows that if one of these key ingredients is missing, the results are often disappointing. The parties’ investment of time and money in the process of resolving the dispute through mediation would itself seem to be a recipe for success. So why does this process sometimes fail? There are several common reasons why mediation efforts do not succeed despite seemingly reasonable efforts by both parties. Below are the issues I routinely see that get in the way of a successful mediation. These issues are all within the control of the parties and are easily avoided with a little thought and effort.
Mediator Selection. A mediator with subject matter familiarity can better direct and focus the discussion and negotiation. Even at the early stages, a knowledgeable mediator can ask intelligent and probing questions to further the parties’ understanding and appreciation of the risks involved with continuing the controversy. Toward the end of negotiations, when the parties are close to resolution, a knowledgeable mediator will better be able to forcefully nudge the parties to the finish line by expressly detailing those risks. Mediators frequently focus on their area of subject matter expertise: labor, construction, employment, personal injury, etc. An evaluative, arm twisting, “bulldog” mediator may do poorly in one case but be indispensable in another. Every case is different, and more than one approach may work. However, the style of the mediator should be carefully considered.