Written by Camdyn Rushlau
When talking about mediation, one question always comes first: “Did you get an agreement?” You can say this to the parties or the mediator, but the meaning stays the same. The question really being asked is, “Did mediation fail or succeed?”
This creates the illusion that mediation can be measured only by production, particularly when that production is an agreement. But continuing the theme of this newsletter, not every “harvest” can be measured by its tangible products. Sometimes what we cultivate is less visible: knowledge, perspective, understanding, and the ability to see conflict differently.
Mediation is no exception. Not every mediation ends with an agreement, and that does not mean that the process failed, or that an agreement would have been the better outcome. Every mediation, whether it results in an agreement or not, offers opportunities to grow understanding and change how the conflict, and most importantly, the parties, move forward.
Before we can decide if a mediation has succeeded or failed, we have to understand what success really means…
Success is… uncomfortably undefined. Defining success in mediation and Alternative Dispute Resolution (ADR) is itself a subject of debate because there are no universally accepted boundaries for success and failure (1). Even more uncomfortably, the boundaries between success and failure blur, and what one person describes as a success, another would staunchly disagree with. For example, Bercovitch uses the Camp David and Oslo agreements as two negotiations often described as successes because they produced agreements (2). Yet, both have also been criticized and labeled as failures because of their substance and the durability of what followed (3). So, who is correct?
Kleiboer, like Bercovitch, leans into the uncomfortable boundaries. Kleiboer argues that “success and failure are construed rather than discovered by the analyst: they are a matter of idiosyncratic values, interpretations, and labeling” (4). This simplifies to: success is not necessarily something that we can point to and objectively identify. As mediators and law-based professionals, success will look wildly different for each of us because defining success depends on what we value, what we measure, and when we decide to measure it. If an agreement can be called successful because the parties reached one, but then the label shifts to unsuccessful if the agreement fails to produce a lasting resolution, then the agreement itself should not be the only measure of success.
Perhaps part of the problem is that we measure mediation using expectations borrowed from other forms of dispute resolution, rather than establishing its own independent expectations.
Phillips argues that mediation should be understood “on its own terms,” rather than reshaped to fit the judicial model (5). If mediation is a fundamental part of self-determination within the legal system, then its success cannot always be measured by whether the mediator produces a particular result (6).
This distinction matters. Mediation does not aim to manufacture an agreement simply so a case can be “resolved.” Sometimes the best outcome for the parties is recognizing that they cannot reach an agreement that serves their interests. In those circumstances, a non-agreement may show that resolution was thoughtfully explored, but another path may be better for moving forward. Korobkin further explains, “Some disputes should fail to settle in mediation because there is no agreement that is preferable to adjudication for all the parties” (7). A settlement is an outcome of mediation, but it is not necessarily the purpose by which mediation should be judged, nor should it define when a conflict ends (8).
In practice, a party may enter mediation convinced the other side is unreasonable and leave with a fuller understanding of why the conflict exists. A party may identify information they need to make a better decision. Parties may discover that an issue that was thought to be immovable is actually negotiable, or that agreeing to certain terms is not what they actually want. Sometimes a party and their representation realize they are missing documentation or evidence that would help their claim. None of these outcomes appear in a settlement, but they provide valuable insight for moving forward. To be clear, this isn’t the definition of success either, as we established that there is no strict boundary, but it helps clarify that the outcome of the dispute should accommodate the dispute’s natural way forward.
This is where our understanding of mediation’s “harvest” needs to evolve.
We tend to look for the most tangible product: the agreement. But some of what mediation cultivates is less visible and harder to define. Understanding, perspective, clarity, and even recognizing that an agreement isn’t possible can all change how a conflict moves forward.
Perhaps we have been measuring the harvest of mediation by what gets signed, rather than what gets understood.
Footnotes:
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Jacob Bercovitch, “Mediation Success or Failure: A Search for the Elusive Criteria,” Cardozo Journal of Conflict Resolution 7, no. 2 (2006): 289–302.
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Ibid.
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Ibid.
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Marieke Kleiboer, “Understanding Success and Failure of International Mediation,” Journal of Conflict Resolution 40, no. 2 (1996): 362.
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Barbara Ashley Phillips, “Mediation: Did We Get It Wrong?,” Willamette Law Review 33 (1997): 649–706.
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Ibid.
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Russell B. Korobkin, “Psychological Impediments to Mediation Success: Theory and Practice,” Ohio State Journal on Dispute Resolution 21 (2006): 281–306.
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Jacob Bercovitch and Leah Simpson, “International Mediation and the Question of Failed Peace Agreements: Improving Conflict Management and Implementation,” Peace & Change 35, no. 1 (2010): 68–103.
Bibliography
Bercovitch, Jacob. “Mediation Success or Failure: A Search for the Elusive Criteria.” Cardozo Journal of Conflict Resolution 7, no. 2 (2006): 289–302.
Bercovitch, Jacob, and Leah Simpson. “International Mediation and the Question of Failed Peace Agreements: Improving Conflict Management and Implementation.” Peace & Change 35, no. 1 (2010): 68–103. https://doi.org/10.1111/j.1468-0130.2009.00613.x.
Kleiboer, Marieke. “Understanding Success and Failure of International Mediation.” Journal of Conflict Resolution 40, no. 2 (1996): 360–389. https://doi.org/10.1177/0022002796040002007.
Korobkin, Russell B. “Psychological Impediments to Mediation Success: Theory and Practice.” Ohio State Journal on Dispute Resolution 21 (2006): 281–306.
Phillips, Barbara Ashley. “Mediation: Did We Get It Wrong?” Willamette Law Review 33 (1997): 649–706.