When is it "Too Late" for Mediation?


by Jeanette Bicknell

March 2013

Jeanette Bicknell

I was speaking with a potential client the other day. He assured me that, as a reasonable person, he understood the many benefits of mediation. But the conflict had gone on for so long, he said, that he feared it was “too late” for mediation.

His remark made me pause. As mediators, we are eternally hopeful about the possibility of resolution. (It would be hard to do this kind of work if we were not.) Is there any point at which it is just “too late” for a negotiated agreement?

After thinking about this for a while, I realized that “when is it too late?” is the wrong question. Indeed, mediation may fail if it is attempted too soon as too late. If a conflict is recent the parties may not yet be motivated enough to settle it. In a long-standing dispute, the parties usually know exactly what the conflict has cost them and they may be eager to resolve things and move on.

Rather than ask when is it “too late” for mediation then, the right question to consider is, “under what conditions is mediation unlikely to be effective?” I can think of at least two scenarios when reaching a mediated agreement is probably going to be particularly challenging.

First, mediation will be difficult if one (or both) of the parties has a strong psychological need for vindication. Sometimes parties in a dispute feel it is important to be “right.” (Of course, this is often combined with a desire to have the other party judged “wrong.”) They want an authority figure – whether that is a judge, a member of the clergy, or the head of their family – to vindicate their version of events and proclaim their position the more compelling.

Second, mediation will be difficult if either (or both) parties disavow any responsibility for the conflict. A party may see himself as a helpless victim who has done nothing to initiate or prolong the conflict. If this is indeed correct – if we have a case of one-sided aggression rather than mutual hostility – then mediation is likely inappropriate. The victimized party would be better off pursuing a rights-based approach. While such one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from both sides. This does not mean, of course, that the contributions are necessarily equal. Avoiding a conflict can prolong it, just as surely as can angry words.

Does the presence of either of these conditions mean that a mediated agreement is impossible? I don’t think so. A good mediator should be able to help parties reevaluate their priorities and question long-standing assumptions. A mediator might help a party realize that an apology might be just as valuable (and more conducive to healing) than vindication by a third party. A mediator can help both parties understand the origins of their conflict and accept shared responsibility. These are just some of the ways in which mediation (and even good-hearted attempts at mediation) can empower parties and achieve more than the resolution of a conflict.



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Biography




Jeanette Bicknell provides civil mediation services as an associate with the Sadowski Resolutions Group LLP. She is the owner of Principled Dispute Resolution and Consulting, which helps its clients manage conflict, create flourishing workplaces and build effective teams.  Jeanette holds an Advanced Certificate in Alternative Dispute Resolution and a PhD in philosophy.  She brings a calm focused approach to every mediation session and consultation, together with superior analytic skills and a sense of objectivity.  



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Website: www.pdrc.ca

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