Saying NO to mediation



This happens rarely but it does happen – I say I won’t mediate the case referred to me.

Why would I do this? Surely I want to help the individuals involved? And as a professional mediator why would I turn away business? The answer is I must feel that the proposed mediation has a reasonable chance of achieving a positive outcome. Mediation can be a tough process for the participants and I wouldn’t want to put people through it unless I had confidence it would be valuable for them. Plus I don’t want the organisation to incur unnecessary expense.

So how do I decide if we should go ahead or not? I always hold initial meetings with the participants to talk through the situation before anyone has to commit to going ahead. Ideally this is face to face but if location doesn’t allow, this can be done on the phone. This meeting allows them to describe the situation and is an opportunity to build rapport and explain how mediation would work. But it also allows me to develop a view of whether mediation is appropriate.

There are a number of factors to consider in deciding my recommendation, but most important is how ready are the participants to move forward. Let me illustrate this with a brief case study.

I was asked by a large charity to mediate between a regional manager and her deputy. The deputy had been with the organisation for 20+ years, the manager had been recently brought in from another charity and had plans for significant change. They had fallen out over the plans and communication had broken down completely. When I saw the manager, her view was that the deputy was never going to co-operate and she would look at organisational redesign to resolve the issue. The deputy was very angry both at the manager and the organisation and was very emotional in the meeting.

In many ways it was a good case for mediation – it was very much a relationship issue, with clashing personalities and poor communication. But I had serious concerns. Firstly the way the deputy came across worried me that he would not be sufficiently resilient in a mediation and his mental health could suffer. Secondly both of them were very caught up with the emotion of what had happened and were not able to envisage that the relationship could have a future. I gave my view to the referring HR manager. I knew that they were under pressure to resolve the situation as it was causing major operational headaches. The risk was that they simply went to another mediator but thankfully they didn’t and we agreed not to mediate. They decided to put in place a temporary fix meaning the two would have little interaction and we could review in time. Six weeks later the HR manager was back in contact. Both participants had had a chance to reflect. The manager recognised that her organisational redesign was never going to be achievable, and the deputy was able to take a more considered view of the situation. We did the mediation, had a tough but positive discussion and they put together a robust agreement. When I followed up 2 months later they were working well together.

This outcome suggests the approach I took in this case was the right one, but how can you judge whether the situation is appropriate for mediation or not? I’m afraid this comes down to judgement and experience. Over the years I’ve put together a list of questions I ask myself to help me make that decision. I only refer to them occasionally – most cases are clear, but if I’m uncertain the questions can help me reflect and form a view. Ultimately we are mediating to help the individuals find a way forward. If in those rare situations there is good reason to suggest this won’t be achieved, I believe it is absolutely right to say NO to mediation.