The Harvard Program on Negotiation published an article on April 19, 2021 on “The Mediation Process and Dispute Resolution”. Interestingly, the article begins by describing the mediation process, as our prior post discusses, as one that “can have an informal, improvisational feel”. What makes mediation unique is that the parties themselves participate in a process that should lead to the ultimate resolution of the dispute. In other words, the parties truly own the ultimate decision that is reached.
The article cites a statistic that 80% of all mediations lead to a resolution of the dispute. I have seen statistics that place the success rate at a higher percentage. I believe that different types of disputes yield different rates of success. Divorce mediation is likely to have a higher ‘batting average” as financial constraints, e.g. legal fees coupled with the frequent lack of “deep pockets”, present a compelling reason for the parties to work hard on a resolution. This factor may be less pressing in commercial disputes where parties tend to be more willing to wait out the process. However, whether or not dispute resolution is fully achieved by the mediation process, it is quite common to find that at least a partial resolution has been attained. The number of issues in virtually any mediation is markedly diminished by the mediation process. Furthermore, once parties begin to have a dialogue, the tensions have lessened. Mediation makes it easier for a future attempt at resolution to take place, and/or for the parties to continue to work together in some more peaceful atmosphere. Mediation is not an all-or-nothing undertaking. In any form, mediation is a worthy and effective tool for ADR (Alternate Dispute Resolution). As always, the best advice remains: mediate don’t litigate.