What Has Happened to Value Processes? When Is It Time to End a Mediation?

Terminating a Mediation When It No Longer Serves the Interests of the Participants Does Not Equal Failure

            In whose best interest is it to NOT terminate a mediation when the values of the process are no longer adhered to? How often do you ask yourself, “Should I end this Mediation?” When do you know it’s time to quit and how do you do so ethically?  

            The focus of this article is not on how to save mediations, but rather knowing when to end them. While the genesis of this article is rooted in family mediation, the key principles can apply to all mediations. Those situations where you’ve done everything possible and are now faced with the decision of whether to end the process. I invite you to consider that termination of your mediation does not equal failure. I believe that failure would be in not ending it when process values have become corrupted beyond repair.

            Many things can get in the way of completing the process. Sometimes people just need to pause. Sometimes people think they can do something and discover that they cannot. Sometimes people enter the process not really understanding the underlying values or maybe not holding those values dear. This is true for the participants and the professionals. Sometimes it’s just not a good fit: the mediator and counsel (consulting or representative) don’t work well together, or perhaps the participants are working with another professional, say a co-parenting specialist and not everyone connects. Perhaps the team doesn’t work together or someone has not made the paradigm shift from instructing clients what to do, to facilitating them making their own choices and decisions.

At other times we miss things, in the initial screening or further along in the process. We don’t call out bad behavior early enough, we fail to timely address the lack of compliance with the Agreement to Mediate or the process goals. It is not just the obvious behaviors, those “red flags”: failure to provide documentation, threats of going to court, accusations of bias, frequently missed appointments, but also those little actions – what I call Beige Flags[1] that could lead to more disruptive and/or aggressive behavior: always arriving a couple of minutes late, constantly interrupting and immediately apologizing, getting easily and frequently distracted. Suddenly you are wondering what is happening – how did things get so off track? Is it possible to save this Mediation? Maybe, maybe not.

Let’s consider some of the core values for process integrity: Self-determination, Respect, Transparency, Listening, Non-judging, Acceptance, Openness, Neutrality/Impartiality, Trust, Conflict resolution, Confidentiality, Interest-based negotiation, Accountability and Compassion. If the core values of the mediation are no longer respected and repeated attempts to get back on course haven’t worked (reviewing ground rules and process goals, calling out bad behavior, returning to interests, revisiting the Agreement to Mediate, having those difficult conversations) then you must consider ending the process. A few of the Questions to Ask[2] yourself:

·      Can I continue my role as Mediator when I believe the process has been compromised?

·      Have I done everything to try to keep us on track?

·      Am I ready to terminate this Mediation?

·      If a co-mediator – or – another professional is involved (co-parenting specialist/financial specialist): am I prepared to discuss with them first?

·      When, how, what do I say to the clients?

If terminating, you must end it ethically and with integrity, following the Ethics, Standards and Best Practices of your Profession and the governing laws of your State. Following are some of the DOs and DON’Ts[3] for terminating your mediation when the integrity has been corrupted:

DOs:

·      Call a colleague for clarification and feedback (if you are having doubts or need reassurance)

·      Discuss reasons for termination with Co-Mediator, Consulting Counsel, Other Affiliated Professionals

·      Explain to the clients the reasons for termination in a meeting

·      Provide referrals for a new Mediator

DON’Ts

·      Assign blame

·      Renege due to pressure from clients or other professionals

·      Violate the terms of your Retainer/Participation Agreements

·      Have this conversation with your clients without being prepared

             This is not a decision to be taken lightly. A critical honest assessment must be made as to where you are in the process. Are you engaging in shuttle diplomacy or negotiating offers exchanged by consulting counsel and calling it mediation? What happened to the client’s right to and desire for self-determination? Are you in violation of the terms of your Retainer Agreement, Agreement to Mediate? Are you justifying the change in process by stating “But, we got to the end.” Are you asking at what cost?

Ultimately, you must ask in whose best interest is it to continue? Yours? Your clients? What impact do we have on the state of mediation if clients are left feeling that they weren’t heard, that they really didn’t decide what was best for them, or what really mattered? What happens when one client walks away wondering why the other “got their way” and their own concerns weren’t met?

When all is said and done, we have a duty of care to our clients to abide by the process values, we have a duty to ourselves to feel good about the process and we have a duty to other mediators not to weaken the values that have been so integral to our practice. The next time you are wondering what happened to your mediation, I urge you to question whether continuing is doing more harm than good and whose interest you are protecting.

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[1] From presentations and materials “Calling it Quits: In Whose Best Interest” ©developed by the author, with colleagues Beth Karassik, Eva DeFranco, Liza Thayer and Calma Collective, LLC.

[2] Ibid

[3] Ibid