Can A Mediation Fail?

Even if everyone at the table is focused on the best interests of their clients and moving the file forward, mediation may not always end with a settlement. This doesn’t necessarily mean that the mediation was a failure! Any mediation that results in the parties speaking openly and honestly to each other is a “win”, especially if you leave with a clearer understanding of the file.

Here are a few ways in which any mediation, even one that doesn’t settle, can leave you in a better position than you were at the beginning of the day.

Insight Into The Case

By the time a case reaches mediation, each of the parties likely feels they have a good understanding of the issues at play. So, what more could be learned at mediation? Plenty!

A mediator offers a fresh set of eyes to the case. Speaking candidly to each party privately, the mediator’s comments during rounds of negotiation can indicate how an independent third party would assess the strengths and weaknesses of a case. Valuable information your mediator could provide could include information that may be missing that would make a more convincing case at a hearing or trial, or whether there are specific concerns that the other side has that you may have overlooked.  These insights can be important if the parties eventually have to make their case to a judge and/or jury.

An effective mediation provides the benefit of real feedback on the merits of your arguments from multiple perspectives that may not have been previously considered.  Even without a settlement, this information can prove invaluable, both to your current file and to similar files later on.

Insight Into The Players

Though it’s possible that lawyers and insurance representatives may encounter each other in prior cases, it’s important to remember that parties to the action, particularly on the plaintiff’s side, may not have interacted personally or professionally before. While they may have had the opportunities to read the facts of the case through the formalities of discoveries, memos and briefs, or the occasional email communication, there’s something to be said for learning more about the person (or people) making the decisions.

Working directly with the opposing party or parties, and with your mediator, can be a valuable opportunity to see how your position is interpreted by others, to make adjustments if needed, to consider a different point of view, and to re-evaluate risk.  Even if no settlement is reached, a mediation can present questions or ideas for both sides to consider that may bring the sides closer together, or even bring them to a settlement at a later date.  

Manage Client Expectations

Offering effective counsel to your client means being realistic with your assessment of a case, and with their chances of actually achieving the settlement number that they may have in mind. Sometimes it helps to have a neutral party, or even the opposing party and their counsel, provide a reality check.

A mediation that does not produce a settlement will still provide an opportunity for your client to hear directly from the other side, and from an impartial third-party, about the strengths, weaknesses,  litigation risks, and reasonable assessment of their case. This assessment can be very useful in managing the client’s expectations as the litigation progresses.

A Roadmap For The Future

A mediation that ends without a settlement often lays the foundation for a future settlement. It allows you to consider your next moves with more knowledge and insight into the case and the opposing parties’ viewpoints. 

As you look ahead to continuing negotiations and the next steps involved in litigating the file, the experience and information gained at mediation can provide a road map to achieving your objectives, including identifying what additional work needs to be done, or where clarification is needed.  For example, if the mediation has highlighted issues with a specific head of damages, you will know that additional supporting documents or expert reports may be required before re-engaging in settlement discussions.

If your first mediation has been productive but more needs to be done by one or multiple parties to help bridge the gap, consider scheduling a second mediation or resumption when the file is ready.  My approach on files that are close to settling at the end of a mediation but aren’t quite there yet, is to work with the parties involved to bridge settlement. Oftentimes, these files will end up settling within a couple of weeks of the mediation.

Achieving a settlement at mediation may not always be possible for a variety of reasons. However, if you use this time to gain insight into your case, the opposing party, and what additional work needs to be done, you may be able to achieve the desired result in future negotiations.  Any instance where knowledge is gained cannot be called a “failure”! When knowledge is power, why not learn what mediation can do to further your case?

ABOUT THE AUTHOR

Marshall Schnapp, Toronto / GTA Mediator

Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.

Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/booking/ or contact Lacey Day at admin@schnappmediation.com or (647) 250-7216.

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