First, let me say some mediations do fail. These are mediations were never going to result in agreement, resolution, or even a better understanding by the parties of their dispute. This might be for several reasons, but the commonest are that the mediator wasn’t skilled and didn’t do the job properly, and that the parties just weren’t playing.
But there’s another outcome that is referred to as “failed” that is no such thing. This is the mediation (and I’m talking specifically civil and commercial here) that is set down for a day, and simply hasn’t finished. Compare this situation with a tribunal or a trial. If all the witnesses haven’t been examined, all the evidence scrutinised, does the judge say, well, we’ve got through some of this, but now we’ve run out of time, so we’ll just call it a day and say it’s failed. Of course not. They judge adjourns the remainder for a mutually convenient time.
Not so with a mediation. Not only are they commonly set down for a much shorter period than a trial – a half day or a full day are common, but once you get to 6 o’clock, and one of the parties or their representatives can’t stay, then that’s the end. No automatic talk of adjournment, no suggestion that we got two thirds of the way through so let’s make sure we finish – no, that’s it. If the parties haven’t signed the agreement by the time the first one has to leave, the mediation has failed.
This is perverse. Mediation takes time. It takes as long as it takes. Sometimes the parties get to resolution quickly, after a misunderstanding is clarified, or some other insight is reached. Sometimes they have to work through a lot of material first. Three, four, five years of dispute – and somehow, if it’s not resolved within the 6 hours, that’s just too bad.
It is too bad. It’s a criminal waste of all that time, effort, skill and potential for resolution. Users of mediation, and mediators, I urge you to adopt the same approach to time as for a trial. When the time is up and one of the parties has to go, ask yourself and the parties these questions:
Is this mediation completely exhausted?
Is there anything else that might be said, asked, suggested?
Is there anything else at all one party might want to ask the other, and could there be anything at all they might want to ask you?
Is there in your mind the tiniest glimmer that you might be able to shift one more inch?
If it was 10 am, would you keep going?
If the answer to any of these is yes, then you should get out your diaries and fix another date.