How does a mediation go south on you? You want to settle the case. Otherwise, you wouldn’t be there, right? But something went wrong and you walked out without a settlement. There are many reasons that mediation can go south and end without a resolution. One of the biggest reasons for such a problem is because the parties or their representatives come to mediation with the desire to create destructive conflict resolution, rather than constructive conflict resolution.
Those who partake in destructive conflict resolution usually seek unreasonable outcomes and are less likely to be flexible in decision making with the opposing party, which often produces negative results. Some of the characteristics of people who engage in destructive conflict resolution are identified by Colette L. Meehan in her article, “Differences between Destructive and Constructive Conflict,” as follows:
• Power struggle: when one individual remains determined to win his/her way;
• Inability to understand the views of others; and
• Unrealistic expectations of the outcome by the attorney or the client.
The presence of one of these signs can make a difficult mediation and can result in non-resolution. The presence of all of these things makes for an extremely hard case to crack.
So what can an attorney or mediator do to help avoid this situation? First, attorneys should try to get their clients to understand that no one wins in litigation and that mediation is not an opportunity to win, but simply to cut losses. Second, attorneys can also make sure that the clients have been reasonably apprised of the weaknesses in the case and not just the strengths. Often the clients want to hear the strengths, but they have really hired the mediator and the attorneys to give a realistic assessment, even if they don’t “want to hear it.” Finally, the most important thing the attorney can do is to have pre-mediation conversations with the other side where he/she tests to see if the other side has the destructive conflict resolution tendencies. If the tendencies exist, that may be a warning sign and a precursor of things to come in the mediation.
If, however, you arrive at mediation and are worried that you have a destructive pattern developing, you can use constructive conflict resolution skills to help try and avoid the storm of discontentment. These constructive tools can be as follows:
• Using active listening skills;
• Focusing on the needs of the other rather than your own; and
• Demonstrate empathy to the other party’s position. Remember, you don’t have to agree with them to empathize with them.
The goal of the mediation is hopefully to bring parties together to dispute their conflicts constructively. If, however, that is not possible, all is not lost. There are ways that an attorney and mediator can act that can help to increase the chance of collaboration and increase the chance of resolution at the end of the day.