Why Mediations Fail

Understanding the Pitfalls and How to Avoid Them

You might have heard about mediation as a way to resolve conflicts without the drama of going to court. Maybe someone has suggested you "try mediation," but you've also heard stories of it not working out. It's understandable to be hesitant, so let’s explore why mediations sometimes fail and how you can avoid those pitfalls if mediation is potentially in your future.

 1. Lack of Genuine Commitment

For mediation to work, everyone involved needs to genuinely want to resolve the conflict. Sometimes, people show up because they feel they have to, not because they really want to solve the problem. This lack of commitment can make the process fall apart quickly. 

In my experience this sometimes happens when a third party (e.g. the employer) pays for the mediation. Either or both parties may feel compelled to agree to participate because ‘the boss’ expects them to, even though they may not believe mediation is the right solution.

Tip: Before jumping into mediation, make sure everyone is truly on board. Have an honest conversation about why you’re all there. (As a mediator, this is a standard step I follow in speaking privately with each individual who will potentially participate in the mediation.)

 2. Poor Communication Skills

Mediation is all about talking things out, but if you’re not good at communicating or listening, it’s easy for things to get misunderstood or heated. Poor communication can make the conflict worse instead of better. In fact, poor communication is often the cause of the conflict: Wrong assumptions are made, you act on those, and hey presto, you have overstepped some mark you weren’t even aware of.

Tip: Work on your communication skills. Practice active listening, speak clearly, and try to understand the other person's perspective. In my mediation work I always have private conversations with each of the parties, not only to understand the issues in dispute, but also to understand their communication style and to coach for more effective communication, where necessary, prior to convening the mediation meeting.)

 3. Imbalance of Power

When one person in the mediation has more power than the other —whether it’s financial, social, or just being more confident or outspoken—it can make the process feel unfair. The less powerful person might feel pressured or ignored.

Another scenario I have witnessed is that the 'weaker' party employs subterfuge. They cannot confront the stronger party directly, and so they will do whatever they can to confound the process, while acting the innocent.

In my experience, there is also the factor of who pays for the mediation. If one of the parties pays 100% it has the potential of triggering that old expression “he who pays the piper calls the tune”. In other words, either party may believe that the person footing the bill has greater influence with the mediator. It undermines the trust in the mediator and hence their effectiveness.

Tip: Ask the mediator how they will manage the process where there is a power imbalance.  In my mediation work I ensure that the participants trust me to take care of the process, and to provide a ‘safe space’ for their difficult conversation by insisting on a ‘chemistry call’.   During such a call the client and mediator have the opportunity to get to know one another, and the client is briefed on the mediator’s approach to the process.

I also raise the matter of payment and the perception of potential power imbalances, and how we may overcome that. Approaches I have used are based on the principle of 'everyone has to have skin in the game'. The parties share the cost of the mediation, but not necessarily 50-50. In fact, reaching agreement on what would be equitable is often the first victory in mediation, and sets a great precedent for future success.

 4. Hidden Agendas

Sometimes people come into mediation with hidden motives. Maybe they’re not really interested in resolving the conflict but want to gather information or manipulate the situation. Hidden agendas can sabotage the whole process.

Sometimes the hidden agenda is rooted in the issues of inclusion: there may be a sense that one party is racist or bigoted or prejudiced against the other party in some or other way.

Tip: Be honest about your intentions and observations, without being judgmental. A skilled mediator will help uncover these hidden agendas and address them directly. 

I have recently had a case where the ‘race card’ was played by one, as a possible explanation for the attitudes of the other.  Having first learned my mediation skills in the transition years in South Africa, I am grateful for the honestly with which we could discuss the matter there, and how it helps me deal with such sensitive issues as race and culture in Canada now.

 5. Unrealistic Expectations

If you go into mediation expecting to get everything you want, you’re setting yourself up for disappointment. Mediation is about finding solutions that everyone can agree on and benefit from, not about one person winning.  At times it is true that the fairness that is required for the matter to be settled may favour the aggrieved party more, but it will come as a result of a fair process, where all gain insight into the true nature of the problem and therefore the appropriate solutions to resolve it.

Tip: Understand that mediation is about finding solutions that benefit everyone involved and be prepared to work towards a resolution that meets the needs of both parties. It also means do not expect only the other person to make changes. You have to be willing to shift too.  A good mediator will facilitate that thought process for you, so you make good choices without compromising your own needs.

 6. Emotional Barriers

Conflicts can bring out strong emotions, and those emotions can get in the way of productive discussions. Anger, fear, and hurt can make it hard to focus on finding a solution.

Tip: Don’t be hard on yourself if you do become emotional. We can’t be 100% rational and reasonable all the time.  Acknowledge your emotions and try to keep them in check. Take breaks if needed and lean on the mediator’s guidance to help navigate those tough moments. A good mediator recognises the warning signs and will step in to ensure maintaining a safe and respectful environment, which includes creating a break for everyone without even disclosing that your shifting emotions were noticed.

 7. Inadequate Mediation Skills

The success of mediation heavily depends on the mediator’s skills. An inexperienced mediator might not handle the situation well, leading to more frustration and less resolution.

Tip: Choose your mediator carefully. Look for someone with experience and a good track record. Don’t be afraid to ask about their background and approach to ensure they’re the right fit for your situation.

If a recently qualified or inexperienced mediator surfaces on your radar, you may ask them whether they are working with a mentor to facilitate them crossing the difficult bridges between learning and being fully competent.  

Conclusion

Don’t let the fear of failure keep you from trying mediation—it could be the solution you’ve been looking for to resolve your conflict peacefully and fairly. It is far more than just avoiding going to court. When you work with a good mediator you will learn things about yourself and the other person; you will learn more about active communication. To quote Stephen Covey: Seek first to understand, then to be understood.[1]

In my experience in mediation one of the most common and unexpected results is not just resolving the matter at hand, but an improvement in the relationship between the parties.

[1] Stephen Covey:  The 7 Habits of Highly Successful People