In a minority of cases, mediations end without an agreement. If this happens, the first step is to analyze why. The second step is to examine what progress has been made despite the no agreement. Lastly, step three is to use critical thinking to discern what the next step is.
Was Mediation Mandatory or Voluntary?
Research shows that the more voluntary mediation is, the more likelihood of success. The more the parties feel that mediation is mandatory, the more likely there will be “no agreement.”
Many mediation experts will distinguish between being mandated into the mediation process versus mandating participation and agreement.
In some cases, parties may be mandated into mediation so they simply understand the process. After they fully understand the process, then they can opt out if they wish. Often once a person understands the mediation process, they think: What harm could be done by participating? This is good.
Remember the old saying? A person pushed against their will is of the same opinion still.
The agreement rate is much better when the parties can be persuaded to participate.
One must keep in mind that the term mediation is used a lot, has a broad definition, and may be used erroneously. Often the media confuses arbitration (where the neutral party makes a decision) versus mediation (where the neutral party assists the parties to reach a resolution).
Why Did the Mediation Fail?
There are a vast number of reasons why a mediation would not result in an agreement. These need to be analyzed before taking the next step.
Location: This may be the least likely of the reasons, but nonetheless, it should be examined.
- Was the mediation conducted in a formal office giving formality to the process whereas maybe one or more parties desired a less formal approach?
- Was the mediation conducted in an informal setting even at a coffee shop where more formality was needed?
- Was the mediation conducted in the office of one party and maybe neutrality did not reign?
Medium (a channel or system of communication, information): Possibly the medium used of the mediation was not the best for these parties or this subject. Possibly the mediation was face-to-face, whereas, possibly the parties operate better virtually, telephonically, or electronically.
Timing: Research seems to indicate that here in the United States, people are the most productive mid or late morning on Tuesdays. People are the least productive on Friday afternoons. So, when was the mediation conducted?
Conflict not ripe: Conflict experts agree that conflict or disputes have a life, a cycle, a sequence. Maybe this conflict was not “ripe” for mediation?
Parties: Parties play the major role in most mediations, so most likely this becomes the major reason that the mediation did not result in an agreement.
- Maybe the parties were not in the mood for mediation.
- Maybe one or more parties were in a “positional” stance. They did not take the time to clarify the underlying interests.
- Maybe one or more parties were unwilling to make concessions. They were not compromising.
- Sometimes one of the parties simply wants to “win.”
- Maybe the parties were not open, were not honest, or were not revealing of underlying needs. Sometimes, one party or more will not recognize “the facts” or “the truth.”
- Maybe one or more of the parties did not want to settle. Maybe they saw some benefits to the status quo?
- Sometimes one party will ask another party “to sell their soul or to lose their personal integrity.” Some call this “an uneven table” that can lead to “dirty deals.” In this case, “staying is sometimes self-destructive.” Negotiating At An Uneven Table: A Practical Approach to Working with Difference and Diversity, by Phyliss Beck Kritek.
Agents: Often the parties will have agents, whether that be an attorney, union representative, or another agent. They can play a major role in the mediation not reaching an agreement. These agents can play a role much like described above with the parties. Maybe the agent-the attorney does not know how to manage a mediation. Maybe their specialty is litigation or arbitration.
Mediator: The role of the mediator may be the third most important factor in how the mediation proceeds. (First, the parties; second, the parties’ agents). The mediator’s style can impact the mediation greatly.
Implementation of mediation process: All mediators are not equal. They implement the mediation process differently. Some mediators keep the parties together during the entire mediation. Some have the parties together initially and then do shuttle diplomacy the rest of the mediation. Maybe whatever process was used was not right for either parties or the dispute.
For example, sometimes an apology is a vital component of the agreement. Usually an apology given directly face to face has more impact. Maybe in this case the apology was not F2F (face to face) but was given to the mediator to be given to the other party.
Verbally Packaging the No Agreement
When the mediation does not result in an agreement, is it a failure? Maybe not.
In the transformative mediation style, the goal is not necessarily an agreement but instead changing the relationship between the parties. Maybe this change includes better or more communication. Maybe this change means that the parties will recognize conflicts at an early level rather than waiting for conflicts to fester and explode.
The next step demands critical thinking. Next steps may include:
Lumping in or moving on: Most people find it uncomfortable to have a situation, a conflict unresolved. In some cases, maybe this is the best. Maybe after the mediation attempt, one or more parties realize that this dispute is not at the top of their high priority list and it is time to move. Maybe the party moves on from the job, the relationship, the situation.
Another try at mediation: Maybe the parties decide to try mediation again but with a different type of mediator or a different mediation style. Maybe the first mediation was a facilitative style and the second could be an evaluative mediation.
Arbitration: Arbitration is a neutral type of dispute resolution where an objective, unbiased person will hear both sides and actually make a decision which may be binding.
Litigation: In this alternative, an official claim is filed in court and progresses through the legal system resulting in a decision by a jury or judge; albeit, most legal claims are settled in the end by negotiation.
Conciliation: This is a dispute resolution process that is similar to mediation but the third party conciliator may play less of a direct role.
So, sometimes mediations do not reach an agreement. When that happens, one first needs to examine the reason. There are a wide variety including possibly the mediator. The next step is to determine what to do. In most cases, the problem at issue is simply not going to go away. Possibly another dispute resolution process such as arbitration might work.
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Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
5 Languages of Appreciation in the Workplace.
Getting Your Way Every Day.