Five Failures of Mediation … and what Mediators Can Do About It (Part 2)

Failure to correctly identify interests

I was recently told of a mediation that involved the sale of a family business. The mediation concerned disagreements between family members regarding the value of the business and ultimately the money each would receive upon the sale. Over the course of several hours each family member identified a payment that would be satisfactory to them using an agreed upon criteria for a fair division.  The business was then sold for an acceptable price, being in the range identified by all. Terms were successfully negotiated and each family member received a payment equal to the amount they agreed upon in their negotiations.

This would seem to be a successful mediation. However, when asked after the sale was completed how satisfied they were with the mediation outcome that led to the sale of the family business, one of the family members responded that they were very dissatisfied. She stated that for her the discontent was not about the money, but rather that she would have liked to have explored the opportunity to stay on with the business in some capacity.  When questioned further she acknowledged that she never brought this up in the mediation and although she never felt good about the proceedings she did not fully realize that she wanted to retain some role in the business until after the sale. Both her attorney and the mediator had focused discussions on the fair value of the business and she had thought that her interests would be served by receiving a proper payment. Rather than trying to assist in identifying  the dissatisfaction being felt throughout the process, her attorney addressed her discomfort  by stating that no one ever gets all they want in mediation and that a sign of a good settlement is when everyone goes away feeling a bit disappointed. Failure to identify her interests resulted in dissatisfaction with the outcome and a negative view of mediation.

Had she understood her own interests better she might have been more satisfied with the process and its outcome may have been very different. She of course bears some responsibility for an outcome that is less desirable than it could have been. But it is also understandable that a party to a dispute would have some emotional clouding making interest identification a challenge. If represented by counsel, the responsibility rests in part with the advocate to explore client interests for a satisfactory outcome. But while working with a skilled attorney might assure interests are explored it does not guarantee they are correctly identified. What then? This is where the skills of an effective mediator come into play. An effective experienced mediator can often sense that settlement discussions are moving along a path that seems inadequate to one or more parties. Body language and tone in responding to questions help tell each parties story. They give signals that interests have not yet been fully identified. More time exploring interests and less on driving settlement may prove to be the best way to provide a suitable process for all.

(Part 3 of 4 will be published next week)

2 thoughts on “Five Failures of Mediation … and what Mediators Can Do About It (Part 2)

  1. Jim Madison

    A second variation on the importance of interests theme. Isn’t mediation 101 to ask parties as well as counsel some probing questions about what’s really at stake and what would be a satisfying outcome from your perspective?

    1. Harry Kaminsky Post author

      One would think so. But based on the number of settlements that produce unsatisfactory outcomes, it would appear that there are times when this does not occur and also other times when even though it did occur parties failed to identify and/or articulate their interests correctly. In the example I used, which was drawn from an actual case, the party herself acknowledged that this was in fact what occurred, but she also stated that she had expressed concerns to her attorney over the direction of the negotiations even though she could not pinpoint what was causing her discomfort. So perhaps her attorney could have done more and maybe the mediator could have spent more time on this. She of course is also responsible for the failure of the mediation to bring about an outcome that she finds satisfactory.


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