Settlement looking unlikely? It’s not over until it’s over!

There are some mediations where, despite all the mediator’s dark arts, one or other party just doesn’t want to settle. Sometimes this might be a cynical attempt to tick the mediation box, or to extract information from the other side (though this is much rarer than parties fear).

More likely is that one party wants to drive the expectations of the other down or up, to set their own parameters for the Zone of Potential Agreement. So in one case, a party made a concluding offer that, as they privately acknowledged, had no chance of acceptance. ‘But,’ as their representative told the mediator, ‘they’ll be more interested in six months’ time when we repeat it as our final offer.’

Either way, if the mediation is coming to an end without settlement what’s a mediator to do? Pack their bag and walk away? Not so fast!

If all else fails, and despite the mediator’s best efforts, parties simply won’t agree, there are still critical steps that can be taken to ‘close’ the deal, or prime the parties for a later settlement.

Before throwing in the mediator sponge, a mediator might try one of these strategies:-

If there really does seem to be no more that the mediator can do, it may be valuable to make this explicit with the parties. In private – or preferably together – it’s important for the mediator to let them know that the mediation has run out of road.

Not only is this a reality test of sorts, but it can have the effect of reminding parties that responsibility for finding a resolution lies with them. There may have been a tendency to look to the third party neutral to find ‘the solution’, and when she or he can no longer be relied on to do that, the parties may be galvanised into renewing their own efforts.

There seems to be a trend, particularly among more business-minded mediators, to offer unresolved parties a proposal, a figure at which the mediator thinks the dispute might settle.

This may seem challenging for those of us who self-identify as facilitative mediators. So it should be emphasised that this isn’t an evaluation of the merits of the respective issues. Rather, it’s a pragmatic guesstimate of a figure, or a package, where the mediator thinks the dispute might settle. It’s subject to a) the parties’ willingness to take this course, and b) the mediator maintaining confidentiality about each party’s response to the proposal – unless both say yes!

There are some mediations where it’s clear both to the parties and the mediator that it can go no further and there’s no prospect of resolution. There are others where, despite the parties’ pessimism, the mediator senses there’s a possibility of further progress, however faint the flicker of life may seem. It’s a source of surprise – and some satisfaction – that post-mediation follow-up can breathe life into a negotiation that might have seemed to be extinct. It may help if the parties will agree to ‘pause’ the mediation for a period of, say, a week to give the mediator opportunities to continue the negotiation by phone or online.

Sometimes, long after it’s ended, I’ll run into someone who reminds me of a past mediation. They thank me for my service. ‘Shame it didn’t settle,’ I say. ‘Oh, but it did!’ they say. ‘It took another year but we did the deal in the end.’