Not all mediations end in an agreement. One question that many participants often ask before beginning mediation is, “What happens if we don’t reach an agreement?” Unfortunately, there isn’t one single answer that will cover all situations. However, a mediation that does not result in an agreement can still be worthwhile.
CCR’s facilitative model places great value on the autonomy of participants in a mediation. CCR’s mediators would rather have participants leave with no agreement than leave with an agreement that they did not arrive at in a free and informed manner. The mediation is as much about participants discovering what is most important to themselves and the other participants in a given conflict as it is about coming to a resolution. CCR certainly celebrates agreement, but we also recognize that settlement rates are not the only measure of “success” under our model of mediation.
There are many reasons why a mediation may not result in an agreement. One or both parties may need more information about a key fact in order to sign off. It may be that the parties are able to reach an informal agreement, but aren’t comfortable putting anything on paper. Or, as often happens, the parties may be able to reach a partial agreement, where only some of the issues on the table are resolved. It may also be that a participant’s underlying need or interest is to have a judge decide the case, or one or both of the parties ultimately decided they may get a better result from going to trial. In these cases, the participant will never be satisfied with a negotiated settlement. Whatever the reasons for participants not coming to an agreement, in virtually all mediations, participants leave more fully informed about their own underlying needs and interests and those of the other parties. This, in and of itself, is a valuable outcome.
On a practical level, what occurs after the mediation can vary greatly from case to case. Some participants, such as parents seeking to modify a parenting agreement, are required, as a condition of the initial agreement, to mediate prior to filing with the court. Other times, such as in attorney fee dispute cases, the court requires cases to go to mediation prior to trial. In still other instances, no court case has been filed and participants are seeking to avoid entirely the time and financial costs of litigation. Each case will have a different trajectory after formal mediation has concluded. One thing for participants who don’t reach an agreement to keep in mind is that there is nothing magical about the mediation space. CCR mediators work hard to help people communicate clearly and productively with one another in the mediator’s presence, but participants can communicate and come to an agreement later as well. As long as parties continue to engage, there is always room for agreement.