When a Mediation Does Not Lead to Agreement/Martin Rosenfeld

Posted on September 19, 2010


Not all mediations succeed in attaining an agreement. What is gained by the efforts in such a scenario?

I believe no mediation is completely unsuccessful. The parties have built up some trust and respect for each other’s position. Some issues are often resolved even though a complete agreement has not been reached. Likely, the parties know what it will take to reach an agreement on the unresolved issues. At times, it becomes a matter of the passage of time before that complete agreement will be reached. Even if the issues that are unresolved will eventually need to be ruled upon by the judge, it is likely that much rancor and enmity have dissipated sufficiently through the communication process that a reasoned decision can issue without re-igniting old hurts and passions.

Mediations do not always result in total agreements, but agreements are always more likely to arise from attempted mediations or incomplete mediations than from a confrontational alternative. Conversation is always a good thing to attempt and attempts at Win-Win virtually always have positive outcomes for the involved parties. Mediation does not have a perfect batting average but it is never a futile effort.