On occasion, you will fail when serving as a mediator. It’s not your fault. For one, it’s raw statistics; any honest mediator will tell you they only resolve 70%-80% of cases. It also has to do with the fact that we’re dealing with human beings and the endless intricacies of human conflict.
So, you’d be wise to consider in advance how to gracefully terminate a mediation process while doing the least damage. Here are some tips from my 2,000+ cases, of which we know statistically 500 ended without agreement.
- Explain that you are invoking the mediator’s right to withdraw. Example: “I’d like to refer to my opening comments today when I mentioned that each of us has the option to stop and withdraw from the process.”
- State why you are stopping the process while remaining within the parameters of confidentiality.
- Normalize the non-resolution outcome. You might highlight that about 25% of situations are not resolved in mediation, and resolution might only be appropriate in some cases.
- Acknowledge and discuss the emotional impacts that people might be experiencing. Example: “I’m sure this is not the outcome that either of you was hoping for…”
- Commend the positive aspects of their participation in the process. Example: “I appreciate your willingness to try to resolve the situation through mediation and that you stuck with the process as long as you did.”
- Acknowledge progress and underscore agreements. Example: “You have resolved a few points today. One is that you both will…”
- If feasible and practicable, capture any agreements they did achieve in writing, while also highlighting the points that remain unresolved. Avoid whitewashing the fact that they did not resolve everything.
- Clarify your next steps and discuss what you – and they – will say and do after this ends.
- Encourage a return to mediation in the future if the situation changes. Be sincere here. If you don’t think they are candidates for future mediation efforts, don’t suggest it.
- Remind them of any confidentiality provisions that are in effect.
- If appropriate, invite parties to share closing thoughts with each other.
Then remind yourself that you can’t win them all and that there are always other options apart from facilitated dialogue and negotiation to solve conflict.