The Trap of Determining Success By Whether Parties Reached An Agreement by Gary Friedman.

Many people come to mediation with a goal of reaching an agreement, so it’s a good thing when they do.  As mediators, we also want people to reach an agreement so they’ll be happy with us as mediators and we will feel successful.  We believe that our reputations will be enhanced by our rate of success.  People seeking mediators often want to know our “batting average”–how often people reach agreements with us.

So it is tempting when a mediation is hanging in the balance for us as mediators to exert pressure on the parties to make an agreement.  We can say that we are doing it for them, and also know that we are also doing it for ourselves.  Quality of agreement concerns can go out the window under the pressure of feeling the risk that the mediation might “fail.”

In the light of day, however, determining success or failure of a mediation is much more complex than looking to whether the parties reached an agreement or not.  We know this as mediators because some of our worst nightmares are not the cases that blew up, but where we participated either by acquiescence or silence to a deal that we knew in our heart of hearts came about by one party capitulating to another, or one taking advantage of the other, or worse, where we might have even thought that one party didn’t quite understand the agreement or the consequences of the agreement.   And some of our best experiences are situations that did not end in agreement but one or maybe both parties were able to have an authentic dialogue that impacted their lives in ways more profound than whether they made an agreement.

If we don’t judge our success by whether the parties made an agreement or not, how do we figure out whether the process worked?   In my experience, I have had a disproportionate number of referrals from former parties that did not reach an agreement in mediation.  So, at the very least, this tells us that the parties don’t determine the quality of the mediator by whether they reached an agreement.  So here it is much more subjective, in terms of our experience and the parties.  Did the parties have authentic dialogue which led to a greater understanding of themselves, each other or their situation?  If they did, I would like to think that the mediation was constructive.  From my perspective as a mediator, did I feel as if I gave my best effort to bring my full self to them, to understand them, to help them understand each other?  If I did, from my point of view, it was successful.   These criteria, much harder to define, yet they come much closer to heart of what mediation is about.