In a previous newsletter, I expressed the view that success in mediation is not solely measured by whether a settlement is achieved. Often, success is about narrowing the gap, better understanding the case and differing perspectives, and paving the way for a subsequent resolution.
Begs the question: what factors commonly impede a resolution at mediation?
Based on my experience both 'in the arena' and as a mediator, here are some key challenges I have observed:
• Inadequate preparation - parties or their lawyers sometimes come unprepared, leaving critical gaps in the evidence that are central to evaluating risk. Without a clear understanding of the facts and evidence, it can be difficult to make informed decisions at the mediation table.
• Limited authority - mediation works best when decision-makers are present or readily available. When representatives have limited authority and must rely on remote instructions, the likelihood of resolution drops significantly.
• Timing - there appears to be a “sweet spot” for mediation. Sufficient clarity on issues, exchange of evidence, plus the financial impact of legal costs already incurred, including some understanding of the costs going forward. When these factors coalesce, they create conditions conducive to settlement.
• Unrealistic expectations – some parties attend mediation believing they will ultimately “win” in court, however that may be defined. While they are absolutely entitled to that belief (not all cases are meant to resolve after all), a key part of the mediator's role is to address risk and reality, helping align expectations with likely outcomes. Sometimes, the necessary alignment cannot be achieved on the day. In other words, the mediation may start an important conversation about risk, cost and reward that may need time to be integrated.
• Toxic relationship history - particularly in commercial matters, deep-seated interpersonal or inter-organisational issues can impede settlement, even when financial matters seem otherwise clear.
• Time constraints - in personal injury matters, half-day mediations often suffice, but complex or multi-party disputes often require more time. I think as practitioners we need to give more thought to full-day sessions or preliminary meetings (say with defendants) to help parties reach meaningful progress. That is, more thought sometimes needs to be given to process design.
These are my initial observations on but a few common impediments I have encountered in practice.
I regularly share short insights on mediation, negotiation and all things leadership. From how to optimise success in negotiations, to the skillset required to sustain high team performance and promote resilience. I share these video reflections, drawing from my experience both as a former leader in professional services and now as a mediator and leadership coach.
"Damien is an incredible Mediator. He is experienced, is always across the brief and has a depth of legal knowledge that can assist the parties to navigate even the most complex issues to reach a resolution. Damien is my first choice for any Mediation, especially for vulnerable plaintiff’s feeling overwhelmed by the process as they are immediately comforted by his affable and empathetic nature.”
Damien was engaged as an Executive Coach in our business to navigate a half-decade of poor habits, realign our leadership team and position us for a strategic exit.Facilitating an executive workshop was instrumental in resolving internal conflicts and realigning us to a collective focus on future opportunities.
I have especially appreciated your logical and calm approach to problem solving, and I have valued your methodical and composed demeanour in tackling complex issues. You have not only equipped me with effective strategies but also instilled a sense of confidence and clarity in my own decision making processes.
