When Mediation Fails/Martin Rosenfeld, JD

Posted on September 6, 2020


Mediation is the search for Win-Win. Litigation is the search for defeating your opponent. But does mediation always work? In my experience, there are certain factors that make success for the mediation perilous. These factors include the following:

*If there is active enmity between the the parties, mediation may not be doomed to failure. If there are no hopes for constructive discussion, mediation may be an exercise in futility.

*Some parties find communication a difficult exercise. Even if enmity is not present, the inability to express likes and dislikes, goals and interests, etc. is not consistent with a search for Win-Win.

*Some issues may become so divisive so as to block the way for a resolution of disputes. These areas may include custody battles or economic issues that cause the parties to dig in their heels.

*There are people who savor their hurts or who are happy when they are unhappy. These character flaws make a successful mediation quite unlikely.

A gifted mediator can make the above difficulties dissolve. Mediation is always worth a dedicated effort. Notwithstanding human frailties, the maxim is always true: Mediate don’t litigate.