How to Fail as a Mediator

How to fail

By:  Donald L. Swanson

We explore “the ways in which” unsuccessful mediators “failed to satisfy” the expectations of their mediating parties.

Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.”

In the “unsuccessful mediators” portion of their study, Prof. Goldberg and Ms. Shaw follow-up on a prior survey.

Prior Survey – Successful Mediators

The prior survey evaluates the performances of highly-experienced and successful mediators. That survey received responses from 216 representatives of mediating parties (mostly attorneys) to questions about the performance of the successful mediators.

Follow-Up Survey – Unsuccessful Mediators

This follow-up survey goes to the same 216 respondents and asks whether “they had ever participated in a mediation,”

(i) in which the mediator’s conduct ”reduced the likelihood of a settlement,” or

(ii) after which the respondent vowed to “never again use that mediator.”

And, if so, the follow-up survey asks for comments on the performance behaviors that created the negative reactions.

Responses to the “Unsuccessful Mediators” Survey

Here is a categorization by Prof. Goldberg and Ms. Shaw of responses they received to the follow-up survey.

Lack of Integrity

“The most common criticism . . . reported by 48% of the respondents” is that the mediator “lacked integrity.” For example:

• “I had one mediator … disclose information provided in confidence. … Once it surfaced that the mediator had breached confidence, clients and lawyer were outraged and [the] mediation failed.”

• “Dishonesty in reporting the other side’s position–confirmed later in conversation with counsel.”

• “I’ve had mediators come in and say to both sides that their case stinks. No credibility there.”

• “One mediator … had his view of the appropriate settlement, and appeared not to be interested in entertaining any other resolution.”

Unempathetic and Self-Centered

20% of respondents cite a lack of “empathy” and an appearance of being “more interested in themselves than in the parties.” For example:

• “When a mediator shows disinterest it becomes readily apparent to the attorneys and the parties …. The disinterest can be expressed with both language and actions or inaction.”

• “Mediators who are more interested in listening to themselves talk rather than the parties are always counter-productive and frustrate the parties. We spend way too much time coming up with strategies to shut them up or keep them out of our conference and/or discussing what pompous asses they are.”

• “Endless talk about themselves; expressing frustration on a personal level when clients would not relent to arm twisting.”

Lack of Understanding and Being Ill-prepared

17% of respondents cite a lack of understanding of “the issues or the law” or “was not well-prepared.” For example:

• “It was clear that the mediator didn’t understand either side’s position, and could not convey those positions effectively.”

• “The mediator did not understand the legal issues in the case.”

• “The mediator did not understand the case, had not done his homework, and thought that with a coterie of some 15 or 16 attorneys, merely saying, ‘Why can’t you fellows get together and settle the case?’ was going to be a successful tactic.”

Insufficient Forcefulness

24% of respondents say “the mediator was not forceful in seeking a settlement” and “just went through the motions of mediation” and did “little more than carrying messages back and forth” (Prof. Goldberg and Ms. Shaw describe such responses as, “far and away the basis of the most criticism”). For example:

• “I have participated in several mediations with mediators who merely relayed offers and counter-offers to the parties. The utter passivity of those mediators did not provide any reality checks for the parties and did nothing to assist the parties in understanding and evaluating alternative theories, solutions, or potential for liabilities.”

• “The mediator was virtually useless. That is, all he did was relay messages without ever pushing either side to get off of ridiculous positions–including push us when we more than deserved to be pushed.”

• “We had a mediator who refused to take control of a mediation that was spinning out of control. We needed him to get the mediation back in control and even asked him to do so. The mediator responded that ‘you guys know the facts and parties better than I do’ … The parties ended up further apart than before.”

Other Deficiencies

Other mediator skill deficiencies are not frequently cited. For example, “Only 11%” mention a “lack of patience/persistence”; 7% “poor evaluative skills”; 7% “a lack of flexibility in approach”; 3% “a lack of creativity”; 2% “not keeping the parties focused”; and 2% “a poor sense of timing.”

Prof. Goldberg and Ms. Shaw suggest that “the reason for the comparatively low frequency” of such criticisms is this: their absence “pales into insignificance” when compared to such criticisms as,

• the mediator lacked integrity, cared more about himself/herself than resolving the dispute, or was unprepared/uninformed about the relevant issues and/or law; and

• the mediator did not demonstrate any process or evaluative skills, but was merely a messenger, transmitting messages from one party to the other.


The foregoing information from Prof. Goldberg and Ms. Shaw should be considered by all mediators as they do their own self-evaluations.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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