As an advocate, I’ve used mediation to help resolve cases since 1989, and have made serving as a mediator a part of my practice since at least 1994.
I think there are five dynamics that power mediation.
First, face-to-face contact in mediation humanizes the parties and helps each side understand the other. There are two side (or more) to every dispute. It’s easy for each side to demonize the other, particularly when separated by the formalities of a lawsuit. When people sit down face-to-face and talk directly about a dispute, some predictably positive things happen. Most often, it turns out that the person on the other side of the table at least believes, in good faith, that they are right, and there is some reason for that belief. That encourages settlement.
Second, the process is usually a low risk opportunity to explore voluntary resolution. For that reason, it can occur early in a dispute when fewer resources have been spent and the parties are not too entrenched. Before mediation became common, many cases settled on the eve of trial. That was wasteful and made settlement more difficult because it’s hard to abandon sunk costs. The mere fact that a mediation is pending requires the parties to focus attention on the issues and think through the options while settlement is still within reach.
Third, a skilled mediator assists the participants in understanding the strengths and weaknesses of the case, and the risks and burdens of the alternatives. If lawyers were perfect, they could provide that service to their own clients. Most lawyers try. But lawyers are humans too and are subject to the blindness of confirmation bias. A good mediator doesn’t bring a bias to the table and can help everyone see things in a more realistic way.
Fourth — somewhat ironically — mediation works because no party gives up the alternative of an externally imposed resolution just by participating. Normally, there is an alternative to mediation, usually some combination of litigation, trial, and a third-party decision. Without the alternative of an imposed resolution, the advantages of face-to-face contact, timeliness, and a realistic view of the issues and alternatives would often fail. Some unreasonable parties would just remain unreasonable. So, one reason mediation works is that, if a settlement is not achieved, there is another alternative. If you’re a lawyer representing a party, that means to maximize the chance that mediation will work, you must be ready, willing, and able to try your case.
Fifth, and surprisingly, mediation works because it provides an opportunity for “things” to happen. What do I mean by this? Direct contact disturbs the existing equilibrium, When the parties and their lawyers sit down and talk, surprising events sometimes occur. Here is an example: I once mediated a high-stakes commercial dispute that took place over four-days in two separate meetings among multiple parties. At the first two-day effort, we found a tentative approach to settlement. But after having a chance to think about it, the plaintiff decided that the approach simply wouldn’t work.
After further litigation did not resolve the case, we got back together a year later. For nearly two days we seemed to make incremental progress, but were still a long way apart. As I walked from one caucus to another, I realized that two of the lawyers were engaged in a side conversation that had become heated. I tried to intervene, but as I approached, one lawyer personally insulted the other. I separated the lawyers and let them cool down. When I took the lawyer who had passed the insult aside, he already realized that he had made a mistake. He asked me if I would confirm that the other lawyer would accept an apology. I did, and the two lawyers “kissed and made up.” (Well, it was really a handshake.)
With that behind them, the lawyers quickly made progress, and complete settlement was reached within a few hours. What happened? I think that settlement progress had been impeded by a long building and deep-seated resentment between the two. The resentment spilled out like poison from a lanced boil in a relatively controlled setting where it did little harm, and lots of good.
So, sometimes unpredictable “things happen” that have little to do with the merits but lots to do with resolving the dispute. Of course, bad things as well as good things can happen. That’s why it’s critical in order to maximize the benefits and minimize the risks, that a skilled intermediary be present whose responsibility is to the process, not to one party or another.
Keeping these dynamics in mind when you’re preparing to mediate can help you use them to best advantage.