BeyondsettLeMent: rethinkingMediationsuccess
Mediation & Arbitration Section
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My experience is largely in family law mediations, and parties often come to mediation with firm expectations about what will happen in court, even if their attorneys have prepared them well. Hearing— and truly absorbing— the risks of a legal position can be difficult— especially when your family and financial future hangs in the balance. A party may need some time to process that information before being ready to change course or sign an agreement.
That does not mean the mediation failed.
It does, however, raise an important question for us as neutrals: Can our own desire to“ get the deal done” cause us to push harder or longer than the process warrants? Mediators naturally want to help people reach resolution, and persistence is often part of the job. But there is a line between encouraging the parties to keep talking and becoming personally invested in obtaining signatures. When settlement becomes our measure of success, persistence can begin to feel like pressure.
We have to remind ourselves— the agreement belongs to the parties, not the mediator.
Maybe we should measure a successful mediation more broadly. Did the parties leave with a better understanding of their options? Did we narrow the dispute, help them assess risk, identify the real impediment to settlement, or create movement where there had been none?
Sometimes the most productive mediation ends with a signed agreement. Sometimes it ends with the parties one step closer to one. If I were keeping that same spreadsheet today, I doubt I would rate each case only as“ settled” or“ impassed.” Some of the mediations I once counted as“ losses” were not failures at all. They were simply part of the process of getting the parties where they ultimately needed to go. n
Author: Rachael Rudin – Rachael Ledit Rudin, PA
N O V- D E C 2 0 2 6 | H C B A L A W Y E R
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