The client wanted to go back to mediation to revise their custody agreement. “My ex-wife was happy with our last mediator because she was really on my wife’s side. I had a lot going on at the time. I should have really stood up to them, but I needed to settle so we could move forward. But now things have changed and it’s really not working for me.” The client was hopeful that their ex-wife would say yes to another mediation, with a different mediator, because he really didn’t want to go to court.
Unfortunately I’ve had variations on this conversation quite a few times. Sometimes it’s a conversation with one of my mediation students who shares that they tried mediation one time, but it wasn’t anything like what I was teaching. They remembered the mediator doling out advice and putting pressure on the parties to settle.
The lack of public awareness about mediation, and the common misconception that it’s all about encouraging people in conflict to “compromise” and settle, creates a challenge in terms of quality assurance. From the outside perspective, a mediator who has a high “success” rate (meaning most of their cases settle) is a “good” mediator. And sometimes they are. But when we equate settlement with success, we miss some critical elements of client satisfaction and undermine true quality of process.
If individuals in a dispute simply wish to negotiate a settlement, there are processes for that. Settlement conferencing is one of those. But mediation is really about supporting parties in resolving not just the tangible issues in dispute, but also in feeling resolved emotionally and psychologically. Sometimes the pathway toward a satisfying resolution does not involve a settlement, or at least not right away.
When a mediator is primarily settlement oriented they may minimize or override the reservations or objections of the parties. They may apply an arbitrary, or legal precedent, of “fairness” in assessing an appropriate outcome for the parties, instead of doing the work of creatively crafting a resolution that meets the needs of the parties in the moment, as well as takes into account possible necessary changes in the future.
The parties walk away with an agreement, the mediator can add one more “successful” mediation to their tally, but can they say that the parties are actually satisfied?
The skills of a mediator are difficult to quantify - the capacity to deeply listen and understand different perspectives; the ability to remain impartial while actively supporting the parties in their communication; keeping their own opinion, values, and ego out of the equation while facilitating collaborative problem solving… These cannot be accurately confirmed by a mediator’s training resume, or by their settlement rates.
Mediators themselves have to commit to ongoing self-reflection. We need to open ourselves up to professional feedback and hold each other accountable. We need to continually check our egos. And we need to interrogate the practice of defining success in mediation primarily by settlement rates.
