In the Goldilocks Zone

Not too hot nor too cold - yeah, I know, they've got to be in the zone to settle... and we've all seen mediations go pear shaped when parties get too hot.

...but on Friday they were too cold. Why?

I blame one factor ahead of others; the 3 stage dispute resolution contract clause that was the stick that got them to the table.

On the one hand, d/r clauses are welcome as they certainly increase our mediation work flows, but on the other they deliver parties to the mediation room in a very different and less constructive frame of mind compared to a truly voluntary process.

Related to the impact of d/r clauses on party motivation is the way some courts are 'encouraging' parties to follow the yellow brick road to mediation and what that does to party mind-set.

For those in many jurisdictions of the US, the Rubicon was crossed long ago and mediators, like those in LA, are left dealing with the results of ill advised mandatory mediation court programs.

A more cautious and welcome approach has been taken in the UK , well scoped here by UK barrister and mediator, Toby Gee. The UK decisions in Halsey v Milton Keynes NHS Trust and Burchell v Bullard undoubtedly reinforced robust judicial recommendations to mediate

Here in my Friday mediation, there were much better odds available to all in other forums where this dispute was always destined to be played out. They should never have had to be at mediation.

I learnt that everyone at mediation, including the mediator, needs to have skin in the game.

If the parties don't, they lack the investment to endure the agony and ecstasy of a robust mediation process and a good compromise.

If the mediator don't, the mediation may lack the tenacity it needs to succeed.