You Get Out What You Put In: All Is Fair in Love and Mediation

A longstanding sore spot in the world of dispute resolution is the gap between education and experience. For decades now, I have encountered mediation students eager to put their learning to work only to struggle to find the opportunity to do so. For those pursuing the ADR Institute of Canada’s Qualified Mediator (Q.Med) designation in Ontario, this real-life experience criterion is often the most elusive.

After all, who would select a mediator with no experience? I touched upon this question slightly in this column years ago when I questioned the value of mediators promoting their mediation counts. For aspiring mediators, the struggle is real.

A common way of addressing this conundrum has been to offer mediation services for free. The thinking being that potential mediation clients may not mind going with a mediator with appropriate training but little experience if the benefit of doing so offers relief to their wallet. But what about that old adage about getting what you pay for?

As a mediation instructor, I flag for my students the risk that free mediations can result in fewer settlements than paid mediations. This is a concern for students embracing the opportunity to get mediation experience by providing their services for free. Simply, the concern is that mediation participants may devalue mediation offered at no cost and be less invested in it.

The extent to which mediation participants invest in preparing for mediation impacts the quality of the process. Informed parties have considered in advance what they would like to achieve through mediation and how they can present themselves during mediation to create the best chance of reaching their desired outcome. They also fully explore the reality of the outcome and path forward in the event mediation does not reach settlement. These parties get more out of the mediation process than those who do not do their homework and go into the process with a fairy-tale understanding of what court or arbitration is actually like.

Still Don’t Nothing Move but the Money

While I offer my students the warning about settlement rates, there are two key additional components to this consideration:

1. Not all mediations should settle. It can be a mistake to overly fixate on settlement as a measure of success in mediation because not all matters should settle at mediation. The very concept of mediation is intended to be a process of self-determination. If a good settlement offer emerges, by all means it should be taken. There are some situations, however, where even the best settlement offer on the table is not worthwhile. In such situations, mediation can offer the benefits of narrowing issues, cooperating on the path forward and developing an interaction plan through the resolution of the matter, even if the path forward is adversarial.
2. Money is not the sole motivator to ensure mediation participants are invested in the process and prepared. Many mediators offer intake or preparatory meetings with parties, including resources to help them get ready for their mediation opportunity. It can be important to ensure parties engaging in mediation see the value in proper preparation.

Putting time in to properly prepare for mediation can be more of an investment into the process than paying for mediation.

In this spirit, Colm Brannigan has observed an increase in mediated settlements when mediation is part of a combined med-arb process as compared to when mediation takes place as a standalone process. Unpacking this with him, our feeling is that participants take preparation more seriously when the risk of having an outcome imposed feels more real. This is one of many ways parties can become motivated to make the most out of the mediation process by preparing for it.

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Note: Marc Bhalla is an instructor at Osgoode Hall Law School’s Master of Laws in Dispute Resolution Program and the York University School of Continuing Studies’ Certificate in Dispute Resolution. The views expressed in this column are from Marc’s capacity as a teacher and supporter of aspiring and new dispute resolution practitioners.