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Mediation On-Line

A Newsletter from ADR Resources
Volume 8, #2 (Spring 2005 Supplement)
From: srmarsh (at) adrr (dot) com


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The Gould Negotiation and Mediation Program seeks a director. This program provides basic training in negotiation skills and theory, advanced training in negotiation, mediation and dispute resolution systems design. The director is a full-time non-tenured member of the faculty. They would like to have the new director in place by September, so time is of the essence

Gould does things right for law students, by starting with negotiation (*all* lawyers have to negotiate, all the time, whether they realize it or not) and offering serious upgrade paths in real education.

Interesting new Mediation & ADR (and other) web sites and useful links:


I'm looking for a review copy of Russell Korobkin, Negotiation Theory and Strategy (Aspen, 2002).


Why Some Mediations Fail

by Allan H. Goodman

Mediation is the non-binding, cooperative process in which parties to a dispute select a neutral third party, the mediator, to help them resolve their differences. The goal of mediation is a settlement agreement. While mediation is usually voluntary, many courts mandate an attempt to settle cases by mediation before setting a trial date. In a typical mediation, the mediator meets with all the parties and their attorneys in a joint session and then conducts a series of private, ex parte caucuses. In these private caucuses, the mediator assesses the strengths and weaknesses of the parties' positions and helps them frame settlement offers. The mediator may transmit settlement offers between the parties or may have the parties meet together in settlement discussions. A skilled mediator is able to help the parties overcome impasses in negotiations and guide the parties to a settlement.

While most mediations result in a settlement, some do not. A major cause of a failed mediation is that the participants approach mediation as informal, adversarial litigation. A party or attorney acting in this manner will address his or her remarks solely to the mediator, as if the mediator were a judge. Despite the mediator's efforts, the party refuses to have a dialogue with the opposing party and does not make a good faith effort to engage in settlement discussions. The mediation fails because the mediation process has never actually begun.

Another reason why a settlement may not be reached is that participation in mediation may reinforce a party's assessment that it has a very strong case and that a better result can be achieved in litigation. A party who has come to this conclusion has benefited from mediation without achieving a settlement. However, the party must proceed in litigation and achieve an acceptable outcome in order to validate its assessment.

Failure to achieve a settlement during mediation can also be caused by the personalities of the participants. Some disputes have their origin in or are sustained by personality conflicts that supersede the issues in dispute. If the parties and their attorneys treat each other disrespectfully before or during the mediation, this may cause psychological damage that prevents them from focusing upon and resolving the merits of the issues of the dispute.

A mediation may terminate without a settlement because of a participant's impatience. A party or its attorney may expect results too quickly or may think that the process is simply not working. Unrealistic deadlines or milestones for achieving results may be imposed on the mediator and the other party. This attitude is non-productive and self-defeating. A mediation conducted under such an arbitrary time frame will terminate simply because time has expired.

Finally, the parties may blame the mediator for the mediation's failure. There are good mediators and bad mediators, and the mediator selected by the parties or the court may not possess adequate skills to deal with the issues and personalities involved. On the other hand, dissatisfaction with the mediator may also result from the parties' unrealistic expectations or their own failure to commit to the process. The parties may fail to prepare for the mediation properly and refuse to attempt a dialogue with each other, but then demand that the mediator "do his magic." There is no magic in mediation. If the parties are not willing to prepare and work together toward a solution, it is difficult to achieve a settlement solely from the mediator's efforts.

Allan H. Goodman is an experienced mediator and arbitrator, a Judge on the U.S. General Services Administration Board of Contract Appeals, and the author of Basic Skills for the New Mediator and Basic Skills for the New Arbitrator. For a detailed description of his books, visit

Copyright 2005 Allan H. Goodman - All rights reserved

BTW, I routinely recommend both of Allan's books.

I also routinely recommend the information provided by Chris Honeyman.

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.  srmarsh (at) adrr (dot) com is the best e-mail address to use to reach me, though I sometimes am not able to check my e-mail for 3 or 4 days.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
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