The concepts of “failure” and “success” in a mediation typically refer to whether a settlement agreement is achieved during the mediation session.
I’ve always felt uneasy about the use of such “failure” and “success” terms in this way.

• I can’t quite put a finger on the source of unease. But it’s like hearing a “litigator” claiming to have “never lost a case.” It’s not that I doubt the accuracy of such a claim [ . . . okay, maybe I do]. But the claim doesn’t quite seem to tell the entire story. After all, lawsuits are high-risk exercises, and litigators are usually stuck playing the hand they’re dealt.
• Similarly, I have an unease about the concept of a “success rate” for mediators. All mediators play the hand they are dealt-and there are some bad hands out there.

Beneficial Mediation “Failures”

My experience, from all sides of the mediation table, is that some of the most-beneficial mediations are the ones that do not reach a resolution in the mediation session (i.e., the “failures”).

• Reasons for the mediation “failures” I have experienced as attorney for a party have nothing to do with the mediator’s performance. The “failures” have had everything to do with the parties and the nature of their disputes.

One common reason for mediation “failures” is this: the positions of the parties are simply too far apart. The parties see the facts or applicable law differently in-the-extreme, and they can’t seem to recognize the other side’s perspective. It’s in these circumstances that a mediation can be beneficial-even in “failure” with a settlement to come later.
Here are some examples:

• The parties have each hired experts who give contradictory opinions on a complex set of facts. The mediation turns into an effort to understand the reasons for their differing opinions. Settlement will occur later.
• The parties have differing ideas about a party’s capacity to pay a settlement. The mediation turns into an effort to deal with that issue. Settlement will occur later.
• The parties each attribute bad motives to the other. The mediation turns into an effort to deal with mistrust. Settlement will occur later.

All of the foregoing is anecdotal and intuitive.

Empirical Data

Fortunately, we have empirical data to support the idea that a mediation session has value, even if it does not result in a settlement during the mediation session.
Back in 1999, California establishes five “Early Mediation Pilot Programs.” In 2004, The Administrative Office of the Courts issue an “Evaluation” of these five programs. Among the conclusions of the Evaluation is this: “all five of the Early Mediation Pilot Programs were successful, resulting in substantial benefits to both litigants and the courts.”
The Evaluation includes findings from a survey of attorneys who participated in the Pilot Programs. The report for each of the five Pilot Programs contains this finding:
A certain “percent of attorneys whose cases did not settle at mediation indicated that the mediation was important to the ultimate settlement of the case.”
Here are the percentages for each Pilot Program:

• 74% in San Diego
• 78% in Los Angeles
• 67% in Fresno
• 75% in Contra Costa
• 90% in Sonoma.

Such findings are strong evidence, indeed, of the value of mediation in a “failed” context.