I once took part in a short mediation (the time scheduled was only a couple of hours) where the parties were different factions in a large extended family arguing over the way an inherited family property had been handled.
This was (as they all are) a dismal and complicated problem. Brothers, sisters, uncles, aunts, cousins and second and third cousins had fallen out. The issue had been dragging on for years, and was looking likely to end up in the courts at massive expense. The family had wisely chosen to attempt a mediation, but had unwisely decided to pay for only a very short one.
Short mediations are fine if all concerned understand the limitations of the format and the parties turn up (a) realising that they need to cut a deal, and (b) determined to do so. In other words, they themselves need to grasp that they will be better off ‘moving on’ from the problem, and that that means settling it quickly as best they can.
The problem with short mediations is that the parties often do not turn up in that frame of mind. They think that they can bludgeon the other side into submission with the rigorous logic of their position. They are not psychologically prepared to use the limited time available to best effect. They rehearse their grievances rather than focusing on possible solutions.
Right from the start the clock is ticking loudly. So even the best mediator struggles to listen carefully to what is really going on, then turn the discussion to creative new ideas for the future.
In this case, I was the mediator. I had talked through the issues with the two sides privately beforehand, and identified with them a way in which the issue might be settled. On the day that proposal eventually emerged, and both sides – after angry recriminations – agreed to it.
I talked to both sides privately about what this outcome meant for them. It was obvious to me that one of the family members had doubts about the willingness of tough Uncle Joe to accept the outcome, but he expressed confidence that Aunty Mary would bring him round.
I felt in the back of my mind a nagging doubt about this, but he and his lawyer seemed confident enough on this score. Plus he said that he had ‘authority’ to settle – his part of the family had accepted that he would do his best at the mediation to reach a clear-cut outcome, and they would accept the result.
The agreement was prepared and signed. All parties entered new binding obligations. Success for the parties and for myself, despite the time constraints. Hurrah.
The deal crashed that same evening. Uncle Joe blew it out of the water. The issue slumped back into acrimony and lawyers, but from a worse position than before (a legally binding agreement had been signed but promptly broken, adding expensive new complications).
What went wrong?
The parties made a bad investment. They had invested massively in fighting each other, but were not prepared to invest in working out a better plan by spending a few hundred pounds more on a longer mediation process. Given the family divisions and the emotions involved, they perhaps should have agreed to have a mediation spread over several sessions, to allow ideas to emerge and different parts of the family to be consulted and perhaps join the process. They literally needed to buy more time.
In short, they needed to invest in listening to each other, and allowing the mediator to listen to them. That would have made it much easier for everyone to agree what the real issues were, and find a way patiently to solve them.
This is what a team mediating effort like Mediation by Design brings to problems. By having two mediators ready to work together as a team on each case we make it far easier for the parties to listen to each other and explore creative solutions.
This approach creates options. The investment the parties make in the mediation process (money, time and nervous energy) is far more likely to get a good result that everyone can accept. A result that sticks.