It’s not possible to google mediation service providers without seeing the phrase, “we settle [number] % of disputes on the day!” crop up. But is it appropriate to present settlement rates towards prospective clients? I’m not sure that it is. I’ll preface this post by pointing out that this practice is routine in the industry and that settlement rates have served as a measure of a mediator’s competence for a long time. Some of Britain’s leading independent mediators and mediation companies have a variant of this phrase in their tag lines. It is not viewed widely as a negative, but there have been voices arguing against it. Before deciding to use settlement rates as a marketing tool, I’d invite you to consider that it may do the following:
It gives the Mediator a financial stake in the outcome
Arguably, all mediators have a stake in the outcome anyway. The thrill of seeing the burden lifted from parties that have in some cases spent years locked in a destructive cycle is intoxicating. It is often the most toxic mediations, the ones that leave you wholly drained at the end that give the biggest satisfaction. The Mediator helps settlement to materialise, and thus, shares in the joy that it creates. But boasting of high settlement rates afterwards gives the mediator, in my opinion, a financial stake in the outcome. If a mediator uses their settlement rate as a marketing tool, actively soliciting work based on the settlement rates they’ve enjoyed to date, they become financially tied to ensuring agreement is reached in all mediations.
This practice, in my opinion, gives mediators the temptation to engage in undue arm twisting. The cardinal rule in my mind upon entering a mediation room is to do no harm. There have been occasions where I knew a person could be pushed into a settlement, but resisted the urge to do so. Consider that one of the most common questions Solicitors ask me is, “what is it that a mediator can add that my colleague opposite, and I don’t have ourselves?” The answer to that question is multi-faceted and becomes apparent within the opening conversations you and your clients have with a skilled mediator. All good evaluative mediators do ask uncomfortable questions, challenge perceptions, and push people (in the right way) when the need arises, but there is a limit that must not be crossed. Though I may try to explore this question in prose at some point, I’ll confine myself here to the following:
The Cases that reach mediation are ones in which there are specific reasons solicitors are unable to settle on their own. One of the mediator’s roles is to use their omniscient view of the conflict to help identify those reasons, and to help all involved overcome them. Once those roadblocks are identified, a mediator has already delivered one of the necessary components to reaching settlement. However, the resolution of those barriers and the subsequent settlement agreements may take more than just one day to reach. I will admit that this is not often the case, but those cases that just need extra time to get there are harmed if the mediator twists too many arms to ensure their settlement rate is not adversely affected. It has been my experience that if a mediator backs off at the right point, and leaves their door open to further discussions that are still covered under the mediation agreement, the matter will settle within a short span of time. That thrill of resolution is still there, and the mediator can look at all involved with honesty and say, “I caused no harm to any party involved.” It is rare that I hear of instances of undue arm twisting from end users of mediation. The vast majority of mediators in the UK, including those that use their settlement rates for marketing, draw the line far away from forcing settlement. But, if you think that this form of arm twisting isn’t an issue in the world of mediation, take a look at Section I(B) of the American Bar Association’s Model Standards of Conduct for Mediators and consider the reasons it’s there.
“A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”
It gives a potentially false expectation to the parties
My main issue with forwarding settlement rates is that it can entrench the dispute yet further if the parties feel frustrated at failing within the mediation. It can raise a whole new negative spiral where blame is flung back and forth, costs are ratcheted up, and any goodwill demonstrated in the mediation feels wasted. It can make parties feel personally aggrieved at falling within the 10 or so percent of people who are unable to reach a resolution. Sure, a skilled mediator can ensure this does not happen, but has an uphill climb in doing so if high settlement rates featured heavily in the preamble and early stages of a mediation.
It is important to manage party’s expectations before, during, and at the end of the mediation. Everyone involved needs to know what’s going to happen, what they’ll be asked to do, and what the possible outcomes may be. The ABA Model Code states that,
“A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.”
Again, consider the rationale behind the above American code. Promising people a 90% chance to succeed on the day, in my view, hampers a mediator’s ability actually to deliver 90% likelihood of settlement being reached. People expect a magic bullet and are sometimes taken by surprise when they are met with a hard grind to get through to the end of the process. There are also many reasons for not reaching a settlement on the day, ranging from a party not being mentally prepared to concede anything further, to lack of necessary information on the day. Therefore, not over-egging the expectation of settlement, but rather setting it as a goal and moving on to actually achieving it, is in my view the best way forward.
Furthermore, you may be inadvertently giving parties a false expectation of settlement in order to win work. I never enter a mediation guaranteeing settlement. First, it is the parties that will settle the matter, I’m there to help. Second, not all mediations settle, but that’s ok. Third, not reaching a resolution but narrowing the issues and making headway can serve as the beginning of the end of the conflict, if the mediation is brought to a close in a skilful way. So, gunning for settlement on the day, but leaving the door open to other possibilities is, in my view, best practice. There are mediators who include the caveat of, ‘or shortly thereafter,’ on their settlement rates, but again, giving parties encouragement is one thing, telling them that most people succeed at something they have yet to achieve is another thing altogether.
So What is the Measure of Success?
If you’re involved in the world of small claims mediation, you ought to know who James Rustidge is. He started the pilot and now runs HMCTS Small Claims Mediation Service. The reason I bring him up is that his service has been a remarkable success.
In a study from 2012, helpfully uploaded to the internet by the Civil Mediation Council, two crucial figures were published that illustrate the reasons for this success. The report is an interesting read, but I would encourage all mediators to take note of these two figures:
95.4% of 10349 responses stated that they were Satisfied or Very Satisfied with their opportunity to participate and express their views.
88.4% of the 1671 responses from users who failed to reach a settlement stated that were Satisfied or Very Satisfied with their opportunity to participate and express their views.
Perhaps that’s the reason 94.4% of 10278 responses to the question stated that they would be prepared to use the mediation service again.
Can you honestly state that 94.4% of people who make it through litigation would want to go through the process again?
In my opinion, though settlement is the ultimate goal of the day, and every opportunity is given for the parties to reach it, it is in fact satisfaction with the process and the full opportunity to be heard that is important. Your arguments, concerns, questions, and more will be presented to the other side(s), and you will hear theirs. A skilled business person needs little more to reach a deal. In amongst all of the formality and noise of litigation, parties are given the opportunity to have a full hearing of their case, and are reminded they have the power to settle the matter in any way that they can agree with the other side(s).
Thus, I’d encourage my fellow mediators to focus on client satisfaction figures rather than settlement rates. If you have opened the door to settlement, you have no obligation to then hurry people through it.
When looking for a mediator, I recommend that your primary focus be on their recommendations. What is that mediator’s reputation? How willing are they to spend time and energy familiarising you and your client with themselves and the process of mediation? You can also look at their terms and conditions. Some very successful mediators don’t make clients pay fees if they felt dissatisfied with the service. Most providers also have a complaints procedure that may refund fees if the mediator is found to have been at fault. Thus, though high settlement rates look impressive, some of the very best mediators around the world refuse to keep records of them, and I follow suit.