Looking back over my mediation practice, I have made a concerted effort to investigate the reasons why mediations did not settle. What was different from those mediations that did settle? Not that that a failure in arriving at a settlement could not still bring some benefit to the parties, whether that meant possibly narrowing the issues in dispute, agreeing on a specific course of action going forward, agreeing on a statement of facts, or even being able to walk in the shoes of the other side and thereby gaining further insight into their case that might not be possible in discovery. The mediation can also provide a better handle on issues like credibility of each party.
WHEN THINGS GO SOUTH
Many years ago I was a teacher’s assistant to a lecturer in the Osgoode Hall Professional Development Program. In the course of the lecture, the Professor stated that when there’s a problem in the mediation room, look at yourself first.
Many times after a mediation that doesn’t settle I get a gut feeling that something did go wrong. Sometimes it comes to me right away. Other times it takes a day or so for the light to go on.
Recently I had two mediations, which ended without settlement. One proved to be salvageable, the other not.