When Mediation Fails/Martin Rosenfeld, JD

Posted on February 14, 2015


An article recently appeared by Attorney Eric Solotoff on the topic of the benefits of mediation even when it leads to no resolution of the issues at hand. Most of the reasons listed for welcoming such a mediation deal with the following premise: Even if the mediation is unsuccessful, you may find out helpful information. From the legal standpoint, this is a correct perspective. This gives solace to attorneys who otherwise would consider mediation a waste of time for their client. However, from the goal of attaining civil communication, such thinking falls short of the mark. Nevertheless, there is one argument that is true for failed mediations relative to the process of attaining Win-Win. This argument, simply stated, is that mediation demystifies the process of the discussion that can ultimately lead to a resolution of issues.

Dialogue is needed for civility in the process of finding solutions. A failed mediation may resolve some issues in dispute. It may lead to easier resolution of issues at a further date. It may lead to a dissipation of the rancor and bitterness that had previously existed. It may lead to other attempts at peacefully resolving the issues at hand. Mediation virtually always makes sense. Looking at mediation from a legal perspective yields one facet of the benefit. In the context of Win-Win, however, there is more to this issue than a legal benefit. Dialogue will always trump litigation. Talking beats fighting. Mediate don’t litigate.