Why to keep talking (even if there is “nothing to discuss”)

Samuel Goldenberg and SchmuÿleI recently read the Ontario Human Rights Commission’s Policy on Competing Human Rights.  One of the things that struck me was that they recommend mediation or some kind of facilitated discussion, even if it is clear from the outset that a complaint may have little merit.  Why would mediation or discussion be a good idea even if no one’s rights are violated, or even when it seems obvious that one party is in right and the other party is in the wrong?

Some reasons why it might be a good idea to keep talking:

Even if it does not result in agreement, a discussion can clear the air.  People involved in a conflict sometimes often have a need to express their point of view.  They want the other side to understand their position, even though they realize that it may not result in any concrete change.  A frank discussion, with or without the help of a mediator, can help them achieve that.

A discussion can be educational.  Sometimes conflicts arise because people simply are not aware of the rules or of others’ rights.  Just as crucially, people may have no idea how others feel, or just how important others might find something that seems trivial.  A discussion can reduce the possibility of future misunderstanding and inadvertent offense.

Even if the rules are clear, the details of compliance might require a discussion.   I used to live near a playground where a posted sign proclaimed a single rule:  “Respect Everyone.”  A lovely sentiment, to be sure, but what does that mean in practice?  By their very nature, rules do not contain the details of their application.  Two people might have very different ideas about what it means to “respect” others.  A discussion of the specific actions that the rules require and forbid can go a long way toward preventing misunderstanding and conflict.

Considering a different perspective can help clarify your own.  Even if you never change your mind about an issue, listening to a different perspective can be useful.  It can remind you of the reasons why you hold your own view.  It can make your own view clearer to you.

It is important to be heard.  Just as it is important to hear another party’s point of view, it is important to have your own position heard.  Even if no one changes their mind, it is important to have one’s own view attended to and acknowledged.  This is impossible without discussion.

Mutual understanding and respectful acknowledgement is not a substitute for agreement, but it may be the next best thing.  The next time you think to yourself that there is “nothing to discuss,” please reconsider.

Is it ever “too late” for mediation?

your time is running outI was speaking with a potential client the other day.  He assured me that, as a reasonable person, he understood the many benefits of mediation.  But the conflict had gone on for so long, he said, that he feared it was “too late” for mediation.

His remark made me pause.  As mediators, we are eternally hopeful about the possibility of resolution.  (It would be hard to do this kind of work if we were not.)  Is there any point at which it is just “too late” for a negotiated agreement?

After thinking about this for a while, I realized that “is it too late?” is the wrong question.  Indeed, mediation may fail if it is attempted too soon as too late.  If a conflict is recent the parties may not yet be motivated enough to settle it.  In a long-standing dispute, the parties usually know exactly what the conflict has cost them and they may be eager to resolve things and move on.

Rather than ask when is it “too late” for mediation then, the right question to consider is, “under what conditions is mediation unlikely to be effective?”  I can think of at least two scenarios when reaching a mediated agreement is probably going to be particularly challenging.

First, mediation will be difficult if one (or both) of the parties has a strong psychological need for vindication.  Sometimes parties in a dispute feel it is important to be “right.”  (Of course, this is often combined with a desire to have the other party judged “wrong.”)  They want an authority figure – whether that is a judge, a member of the clergy, or the head of their family – to vindicate their version of events and proclaim their position the more compelling.

Second, mediation will be difficult if either (or both) parties disavow any responsibility for the conflict.  A party may see himself as a helpless victim who has done nothing to initiate or prolong the conflict.  If this is indeed correct – if we have a case of one-sided aggression rather than mutual hostility – then mediation is likely inappropriate.  The victimized party would be better off pursuing a rights-based approach.  While such one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from both sides.  This does not mean, of course, that the contributions are necessarily equal.  Avoiding a conflict can prolong it, just as surely as can angry words.

Does the presence of either of these conditions mean that a mediated agreement is impossible?  I don’t think so.  A good mediator should be able to help parties reevaluate their priorities and question long-standing assumptions.  A mediator might help a party realize that an apology might be just as valuable (and more conducive to healing) than vindication by a third party.  A mediator can help both parties understand the origins of their conflict and accept shared responsibility.  These are just some of the ways in which mediation (and even good-hearted attempts at mediation) can empower parties and achieve more than the resolution of a conflict.

Apprehension of Bias: When Should a Mediator Step Down?

NEUTRAL [- +] Which side are you? I have been closely following the dispute between the British Columbia Teachers’ Federation (BCTF) and the BC provincial government over the appointment of Dr. Charles Jago as mediator. The teachers’ union and the government have been in disagreement for several months over wages and working conditions. The BCTF recently asked the B.C. Labour Relations Board to remove Dr. Jago because of an apprehension of bias.

One of the most important features of the mediation process is the mediator’s independence. Mediators are neutral parties, and not more or less sympathetic to any of the parties in a dispute. The ADR Institute of Canada’s “Model Code of Conduct for Mediators” is very clear on this point. Mediators are not supposed to have an interest in the outcome of the mediation process, or even in whether the parties reach a settlement at all. This is because mediation is meant to be a voluntary process in which the parties are self-determined. The success of mediation depends on the fact that people are more likely to respect agreements that they have entered into freely, and that they have had a hand in crafting.

The teachers charge that Dr. Jago’s links to the provincial government make it impossible for him to serve as an impartial mediator. According to the Globe and Mail, Dr. Jago told the union that he had agreed to serve as mediator in early February – before the BCTF was asked to put forth a list of acceptable mediators. (The union suggested two judges, neither of whom was available.) Dr. Jago also admitted to have seen and commented on the controversial new education bill before it was tabled in the legislature. These factors, coupled with Dr. Jago’s apparent lack of mediation experience, led the teachers’ union to suspect that the process as it has been structured is fundamentally flawed.

Dr. Jago, for his part, has refused to step down. As he wrote in a letter to the BCTF, “I assure you that I am impartial. From the outset, I have been clear that I will be fair and balanced in mediating this dispute.”

Dr. Jago’s unfortunate echo of the “Fox News” motto notwithstanding, he fails to show any realization that assurances of impartiality are beside the point. He may believe himself to be unbiased; he may in fact be completely impartial. But unless both parties in the dispute have confidence in his impartiality, it will be very difficult for him to succeed in mediating the dispute.

The Labour Relations Board has not yet ruled on the teachers’ request. (Indeed, it is not even clear that they have the jurisdiction to rule on it.) If the BC government is sincere in wanting a negotiated settlement to the dispute, they might do well to re-think the process of appointing a mediator. One possible strategy would be devise a list of three or more acceptable mediators and then invite the union to choose a mediator from that list.

Negotiations and Trust

TrustMediators typically hope that the negotiations they facilitate will be “win-win.”  This means that each party, while not perhaps getting everything they want, will get something of value or importance – something that they would not necessarily have gained through a different kind of dispute resolution process.  Mediators are encouraged to think broadly and help parties create value.  To use a robust cliché, we try to help the parties think about how to make the pie bigger before we help them portion it out.

So I was saddened to read (in the February 2, 2012 issue of The New Yorker) of negotiations that could be described only as “lose-lose,” with the parties ending up worse off than they were before.  Ian Frazier’s article, “Out of the Bronx:  Private equity and the cookie factory” tells the story of what happened when Brynwood Partners bought the Stella D’oro cookie factory.  A quick summary:  The new owners announced that they would reduce salaries and benefits.  Workers went on strike.  Eleven months later, Brynwood partners was ordered to reinstate the strikers.  They complied, but soon after sold the factory to another company which closed it down and moved production to Ohio.  The strikers lost their jobs; Brynwood Partners reports losing “upward of seven or eight million dollars”; and the community lost the benefits that come with hosting a profitable business (not to mention, a nearby reliable source of yummy cookies).

Frazier’s article does not say much about the negotiation process between workers and the new owners, and I do not know whether mediators were involved, and if so, what style of mediation they favoured.  But one detail from his account stood out:  The strikers distrusted the new owners and did not believe that they were telling the truth about the company’s financial situation.  And without an accurate idea of the company’s profitability, they had no way to judge if the salaries they were offered were reasonable or exploitative.  (The merchandise mart that took over the factory building will pay lower wages than Brynwood had proposed in the rejected contract.)

Lack of mutual trust is often a factor by the time parties come to mediation.  How can mediators get parties to trust one another?  The answer may surprise you:  They cannot and should not try.  Personal trust has to be earned over time.  Mistrust can be a protective response, and people sometimes have very good reasons for not trusting one another.  A mediator risks losing credibility if she encourages people who are mistrustful of one another to ignore these feelings.

But thinking of “trust” as a personal attribute is only one way to think about it. There will always be specific individuals whom you may not trust, and others who may not trust you.  In many disputes, trust can be “out-sourced.”  That is, both parties can agree to put their confidence in a neutral evaluator.  For example, in a strike situation where parties have different views of the organization’s financial prospects, a mediator might suggest bringing in an independent accountant or valuation expert.  Family members whose disagreements over the value of an estate are complicated by personal mistrust might agree to seek out several assessments and work on the basis of their average.
When people mistrust one another – and even when that mistrust is entirely appropriate – they can often continue to work together and negotiate effectively. When disagreement over some factual matter is driving a dispute, parties who can out-source trust might be able to come to a “win-win” agreement after all.

More on Confidentiality in Mediation

November 29, 2010Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.

“The Interrupters”: Lessons for Mediators

 

I had a chance last week to see The Interrupters – a new documentary about mediators in Chicago who work to reduce gang violence.  The film focuses on three “violence interrupters” who intervene in conflicts before they become violent.  All three work with the organization “CeaseFire,” founded by Gary Slutkin.  Slutkin, an epidemiologist at the University of Illinois in Chicago, believes that gang violence is a public health problem and that the spread of violence mimics the spread of disease.  The solution is similar in both cases:  Find those who are most infected and stop the infection at its source.

Critics have said that the film is “riveting” and I would have to agree.  It is fascinating to see, up-close and first-hand, the work done by these brave men and women.  The film also has some lessons for mediators of non-violent conflicts.

Words matter:  Ameena Matthews (in the image above), one of the mediators portrayed, tells us early in the film:  “They say ‘sticks and stones will break my bones but words will never hurt me’?  Words will get you killed.”  Even when violence is an unlikely possibility, choice of words – and the respect or disrespect that those words convey – can have a crucial effect on negotiations.  Mediators may need to coach clients about their choice of words and get them to reflect on the possible consequences of those choices.

Credibility is key:  The mediators portrayed in the film can be successful only if they are respected by the people they work among.  Their personal histories, experience with violence, and the force of personality they display all contribute to their credibility.  While “credibility” will mean something different for mediators working with a different clientele (say, Bay Street lawyers rather than youth-at-risk) its importance should not be underestimated.

Gain trust by demonstrating that you understand the client’s perspective:  In a powerful scene, Ameena and some other mediators intervene in a confrontation taking place right outside their offices.  We see her conversation with one of the young men she has just hustled away.  At first, it seems (incongruously) that she is praising him for almost getting involved in a violent conflict:  “You came to protect your family, right?  You came down because your sisters called you?”  We see the point of her strategy later.  The young man is prepared to listen to Ameena when she appeals to his protective impulses:  “How are you going to protect your family if you’re in jail?  How will they cope with that?”

Use the clients’ own values in getting them to think about their actions:  The violence interrupters are not neutral with respect to the outcome of their negotiations.  Their goal, in every case, is to reduce violence and save lives.  One of their techniques (familiar to mediators everywhere) is to get their clients to think about whether their actions are in harmony with the values they express.  We see mediator Cobe Williams working with two brothers who are members of rival gangs.  The brothers claim to love one another, but bicker with one another and with their mother until Cobe wonders (and we wonder) if he can make a breakthrough.  The turning point comes when he asks each brother in turn, “If they [the gang] was coming after your brother, would you protect him?”  When each brother sees the other answer in the affirmative, they seem to realize that their bickering and trash-talking and posturing are out of place.

Listening works:  Many of the people we see involved with CeaseFire are very charismatic.  Tio Hardiman, head of the violence interrupters program, and Ameena Matthews in particular, come across as very strong personalities and powerful, effective orators.  The film contains several splashy scenes of their work and the positive influence they have on others is evident.  Yet the film also contains quieter, yet equally powerful moments, when all the mediator seems to do is maintain his composure and listen, and then demonstrate that he has heard the speaker.  Several times, we see violent impulses drained away as the speaker realizes that his grievance has been heard and understood.

 

I’m in Mediation. Why do I need a Lawyer?

Lawyer Bashing Is Fun

The Ontario Association of Family Mediators “Code of Professional Conduct” states that mediators must inform clients of the advisability of obtaining independent legal advice, both from the outset of the mediation and prior to signing any mediated agreement. Indeed, many mediators will not accept as clients people who refuse to obtain independent legal advice. Sometimes people who are working with a mediator are dismayed to find this out. “We want to stay out of court!” they protest. “Why do we need lawyers?”

The short answer: Your goal is not just an agreement. Your goal is a durable agreement, one that neither party will be motivated to challenge in the future. A durable agreement will save you time and money in the long run. It will provide stability for everyone involved and allow both parties to get on with their lives.

There are two main reasons why consulting a lawyer is important for crafting a durable agreement. First, each party needs a lawyer to certify their financial disclosure. If it turns out that one of the parties has (whether by mistake or on purpose) misrepresented his or her financial situation, any agreement reached on the basis of the misrepresentation may not be durable. The other party would have a reason to challenge the agreement in court.

Second, both parties need independent legal advice. This means that each party needs to know their rights under the law, and to what extent (if any) the mediated agreement deviates from these legal rights. For example, if one of the parties agrees to forgo spousal support, she needs to know what her legal entitlements are so that she can make an informed decision. If she makes a decision without having all of the relevant information, then any agreement she signs may not be durable. She would have a reason to challenge the agreement in court. Now, some people, for all kinds of reason, decide to accept an agreement that does not reflect their legal entitlements. Some agree to settlements that provide less than their legal entitlement. Some agree to settlements that are more generous to ex-partners than is strictly legally required. Many different kinds of agreements may be fine, as long as everyone is fully informed about their rights and obligations under the law.

Independent legal advice means that each party needs a separate lawyer. By definition, one lawyer cannot offer independent advice to two parties in the same dispute. It is a good idea to consult with a lawyer early on in the mediation process, and be informed about your rights and obligations as you proceed. This is likely to save you time and money in the long run. If you’ve developed an agreement on the basis of misinformation or misunderstanding, a lawyer may advise you to start over.

Finally, be sure to engage a lawyer who has expertise in family law. Don’t hire your cousin the corporate lawyer or the really likeable real estate lawyer who helped you buy your house. Family law is complicated and you want to make sure that whomever you work with is well-informed. If you’re determined to stay out of court, make sure your lawyer knows this and respects your wishes. (And to find a lawyer who is also determined to stay out of court, consider working with a collaborative lawyer.)

Women, Money and Financial Literacy

Without money

I recently read about a divorcing couple who met with a mediator, only to be told that mediation would not be the best option for them. Later, when pressed, the mediator offered several reasons why she was reluctant to take them on as clients. But the factor that seemed the most significant to me was the divorcing woman’s discomfort talking about money and her lack of basic financial literacy. Was the woman in this case a recent immigrant and unfamiliar with North American ways? Was she uneducated? Was English her second language? You might be surprised to hear that she was a highly educated (Ph.D.), middle-class, native-born American.

But then again you might not be surprised. A recent survey by the Globe and Mail of 800 of their (presumably educated and sophisticated) readers, found that only 29% of women and 53% of men said that they were “absolutely” financially literate. When the woman in the case I’ve mentioned reflected on her situation, she found that she had gradually let her husband take over the family’s money management. There was nothing sinister about this – she disliked having to think about such things, he enjoyed working with numbers, and she felt that he would do a better job. But this meant that when they decided to divorce she was a bit lost. She had to pick up money management skills at the same time as she was trying to cope with the stress of divorce and the added burden of being a single parent.

The Canadian Task Force on Financial Literacy defines “financial literacy” as having the knowledge, skills and confidence to make responsible financial decisions. While everyone should be knowledgeable about their money and able to make good decisions, the costs of financial illiteracy are particularly high for women, who still tend to earn lower salaries than men.

How can you become financially literate if you’re not? If you aren’t already familiar with your family’s financial situation, get better acquainted with it. As a minimum, you should know the amount of your monthly rent or mortgage payment, your monthly cost of living, how much money you’re setting aside for savings each month, the outstanding balance on your credit cards, and how much you’re paying in interest. You can get more familiar with your financial situation by taking on some money management tasks each month: pay the utility bills, make the mortgage payment. Get involved the next time you renew your mortgage. Sit down with the person who handles the family finances and have him or her go over the basics with you. If you’re handling finances by yourself for the first time and you feel overwhelmed, get help. (The woman whose story I’ve told in the opening paragraph ended up asking her mom for help). In Canada, the Toronto Star maintains a great website with lots of practical information. For help with your specific situation, it might be worth your while to sit down with someone where you do your banking, a certified financial planner or a certified divorce financial analyst.

Gary Noesner’s Stalling for Time: Lessons for Mediators

It isn’t often that I’m so absorbed in a book that I miss my subway stop. But that happened to me when I was reading Gary Noesner’s Stalling for Time: My Life as an FBI Hostage Negotiator. The book is fascinating reading, whether or not you’re the sort of person (as I am) who can be transfixed by movie scenes of high stakes negotiations. Aside from being an absorbing read, Noesner’s memoir contains some important lessons for mediators, even for mediators who hope never to negotiate with armed criminals.

The Importance of Coaching: FBI negotiators usually work in teams. While one officer negotiates, another listens and may offer suggestions via a passed note. The “coach” will often sense an opening or possibility that the active negotiator, listening and working in the moment, has not noticed. For example, FBI negotiators tried for weeks to persuade followers of David Koresh to leave their compound at Waco. Some did leave, including many of the children, but negotiations were slow and difficult because Koresh had a strong psychological hold on his followers. One woman got the courage to leave after the negotiator told her that her son, who had been released earlier, “needs a hug from his mom.” The primary negotiator told her this only because Noesner, acting as a coach, had been monitoring the ongoing conversation and sensed that this remark would be effective in getting her to think of her son’s emotional well-being and thereby weaken Koresh’s influence. Any mediators involved in complex, multi-party negotiations might benefit from working with a co-mediator.

Trust and Credibility: Noesner sometimes had to work hard to establish trust with his negotiating partners. His work brought him into contact with violent prison inmates, men who were angry and abusive towards women, religious fanatics, right-wing extremists, and mainstream political activists. Often, these were people from very different backgrounds with whom he had little in common. In every case, he treated those on the other side with respect and strove to make them feel like he cared about their well-being. Noesner tried at all times to project the view that he genuinely wanted to help them get out of their predicament with security and dignity.

De-briefing and Support: When negotiations have gone well – and especially when they haven’t – negotiators meet to discuss which techniques worked and which were less successful. FBI negotiators often work long hours in extremely stressful conditions, sometimes far from their families and the comforts of home. When a job is over, staying in touch with co-negotiators and talking things over is an important part of maintaining good mental health.

Safety: Although they are tough and confident around firearms, FBI negotiators place a high priority on their personal safety and do not put themselves at unnecessary risk.

Mediation Works: Noesner tells us about some pretty challenging cases, and not every story has a happy ending. Still, it was truly inspiring to read about his successes. A trained negotiator has important skills and the power to do good, to avert violence and to help resolve even those situations that might seem hopeless. This is important to keep in mind, even if the only high-stakes negotiations we are ever exposed to are in the movies.

Mediation and “Bad Faith” Bargaining

Mom buys fish for dinner
I remember, during my mediation training, asking for a clear definition of “bargaining in bad faith” and being disappointed not to receive one. Having now myself done a little research I can understand why the concept is so hard to define, despite many people’s claim to “know it when they see it.”

Most of the legal discussions of bad faith bargaining that I have seen come from the area of labour relations. For example, the Alberta Labour Relations Board advises that, “parties must make every reasonable effort” to reach an agreement. They also list some examples of bad faith bargaining techniques, including refusing to meet the other party, refusing to respect the other party’s representatives, reactivating proposals that have already been settled, adding new areas of discussion late in the dispute, and “surface bargaining.” I would guess that “surface bargaining” is what most people have in mind when they think of bad faith bargaining. It is basically a form of stalling. In surface bargaining one of the parties “goes through the motions” of bargaining, but has no intention of ever coming to an agreement. The BC Labour Relations Board defines bad faith bargaining somewhat more strictly, saying that it is the “deliberate strategy by either party to prevent reaching an agreement.”

Bargaining in bad faith is not the same as “hard” bargaining, but the two can be very difficult to tell apart in practice. Imagine a dispute in which party “A” has made what they consider a reasonable offer to settle. Party “B” refuses to accept it and has not moved very far from their opening position. Did party B never intend to settle, or are they simply convinced that party A’s offer isn’t yet good enough? How would a mediator (or anyone else) be able to tell, short of a private confession by party B? Or imagine a dispute in which party A spends a lot of time going over relatively trivial yet highly detailed matters. Is party A deliberately stalling, or taking reasonable care to protect their interests? And who is to say what counts as a “trivial” issue?

Yet despite the difficulties in characterizing bad faith bargaining, it represents a real problem for mediators and for the mediation process. It is a particularly troubling possibility when one of the parties has greater resources (time, money) than the other. The more powerful party can stall, drawing out the process and using up the other party’s time and money. When the mediation process is declared a failure, the stronger party is in an even more favourable position. The weaker party, having depleted their resources, may agree to an unreasonable offer because they no longer have the money to defend their rights in court.

What should you do as a mediator if you suspect that one of the parties is bargaining in bad faith? I don’t think that there is any way to be sure that parties intend or do not intend to come to an agreement, and it is important not to jump to conclusions. If one of the parties won’t move from what looks like an unreasonable position, try to find out why. Their view of the dispute may be such that their own position is reasonable. How does it differ from your view, and from the other party’s view? But there may come a point in a mediation when the mediator begins to suspect that the process is not serving either party and that prolonging it would not be a good use of their time or money. In this event, the best thing for the mediator to do may be to explain their concerns and then exercise their right to end the mediation.