Mediators often suffer from anxiety when the parties seem unable to find a consensus, as if a mediation's failure is their fault. However, failure to settle is sometimes due to the parties not having committed to the mediation process and being unable to yield their fixed views to better reasoning.
Mediation is a voluntary process in which parties must consent to participate. So, at any stage, a party may voluntarily terminate the process. However, having paid for the process (usually), clients may be advised to remain and get their money's worth. Parties are also encouraged at the end of the mediation to destroy any notes they may have made during the process to maintain the confidentiality of the process.
Mediation should take place in a non-threatening space. The mediator should create a welcoming environment, possibly offering light refreshment to disarm the parties, so that the parties can be comfortable, converse freely and give the process the best chance of succeeding. It is a less formal process and so parties need not necessarily adhere to a strict dress code as would be required in court. There are not many rules as to what can be said and what must not be said, except that swearing and other hostile behaviours are discouraged.
With the tremendous backlogs inherent in court process in many jurisdictions, parties are best advised to mediate their differences. Even if a matter is already before the courts, parties are always able to take a step back, re-evaluate their position with the help of a mediator or otherwise and settle the matter. In a civil case, judges are always happy when the parties are able to settle their differences even at an advanced stage of the proceedings, although it must be mentioned that it would be most cost effective if employed sooner rather than later.
Of course, some parties refuse to settle merely to buy time when they are fully aware that they are wrong, but perhaps simply do not have the wherewithal to address the issue. Others are simply litigious and enjoy being at loggerheads and taking other persons to task.
However, there are hardly ever any true winners in court as the process is fraught with stress , expense and delay, for both the parties and their counsel, which is never good.
Lawyers need not be afraid of mediation as the sooner one case is settled, the sooner one has more time to devote to other matters.
Clients should always choose a lawyer who they absolutely trust. Recommendations to engage in the process of mediation are sometimes met with accusations that the other side has ‘bought out' the lawyer, which is usually untrue. Lawyers' main interest is to get the matter resolved on terms acceptable to their client. Mediation supplies the cost-effective solution.