Do you think it matters? That is, do you think it matters how many cases a mediator has settled? Do you think we can measure the success of a mediator by keeping track of winning and losing records? Or for that matter, do you think a mediation can be successful even if it doesn’t settle?
I recently participated in an on-line discussion about the challenges facing mediators in this ‘settle by zoom’ era. Apparently (and I have not experienced it yet) there is a certain part of the population of participants, parties and counsel who do not wish to turn on their video camera when participating in the mediation. There may be many reasons for this, likely ranging from having a bad hair day to wanting privacy. Sometimes parties are just being difficult, obstreperous or simply uncooperative.
The question is, does it matter? In my view, likely not. We have to remember that while the mediator controls the process, the conflict is owned by the parties. As does the solution. If one of the tools of the mediator’s tool box is removed, like eye to eye contact and the ability to “read” the other person and react accordingly, a skilled mediator will simply look upon it as just another challenge in a process already filled with barriers. No one wants to talk to a blank screen with only a name showing. However, the true measure of the mediator is the ability to remain agile throughout the process. The joy (if that is not too over the top) for the mediator comes with the myriad of never repetitive challenges and opportunities that the mediation process brings to the participants.
Is settling important? No self-respecting mediator would tell you otherwise. After all, mediation is one of several forms of “dispute resolution”. So settling must be important to the mediator or the clients will not be well served. But should the measure of a mediator be based on the percentages of cases settled? Not in my view. After all, there may be other, less tangible benefits, but if the mediator was fair, flexible, committed and tenacious, the mediator will have been successful, settlement achieved or not.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”