Fair Practice

Can Mediation Fail?

5 Aug, 2021Blog, Mediation & Negotiation

This article is for information purposes only and is not legal advice.

Author: V. Srikison

From my many years as a student, practitioner and trainer of mediation, I look at the outcome of mediation, which could produce various configurations as a result of the utilisation of the mediation process, as a measure of whether the clients deemed the process appropriate. Possible outcomes of mediation can be: full agreement, partial agreement on certain issues, the clients are not “mediation ready” at the moment and walk away or a misunderstanding of the process from lawyers who have ill-advised their clients resulting in clients walking away after one session as a strategy of showing an attempt to collaborate.

When tensions are high and frustrations are setting in, I do suggest that clients take time away/or a break to reflect on the purpose of the process and any outcomes they hope to achieve. After some time, they do come back to mediation when they feel ready to collaborate. I also hold sessions with lawyers to explain the purpose of mediation and how they can better prepare their clients for it. In some instances where deadlock seems imminent, I have separate sessions with each client and their lawyers to understand their negotiation strategy and work with them them on how they can improve a better outcome in mediation instead of walking away. 

In all my years as a mediator, I have not labelled any mediation, where clients chose to walk away before reaching resolution, as a failure. Mediation can be an empowering experience for those who feel neglected or under-resourced in a dispute. Mediation gives clients the opportunity to better understand the issues in dispute by having their voices heard so that everyone learns from their perspective how they view the issues in dispute. Sometimes all a person needed was to vent because they were not being heard by their representatives during the round table negotiations. Due to its process design, and the role the mediator plays, mediation provides that safe, confidential, without prejudice environment for clients to express their challenges in reaching agreement.

In South Africa, Rule 41A of the Uniform Rules of Court provides that mediation be seriously considered at the outset before proceeding down the litigious path. Why? In mediation, clients a engage in discussions, negotiations and generating possible options facilitated by the mediator with the goal to reach agreement. From my experience, clients who stay long enough in mediation will eventually develop a rhythm of constructive communication as they start to reach consensus on some issues and eventually go on to reach agreement on all issues.  

There are no winners or losers in mediation, nor does mediation take away other forms of dispute resolution, if it is inappropriate for the circumstances. I believe that you cannot fail in mediation, you can however learn from the experience. If you are ready to engage in one more way of resolving a dispute, give mediation a try, you might appreciate being involved in creating an outcome that you can all live with.

Contact us at Fair Practice for your mediation experience.

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