I recently ran across a mediation website that boasted of a “success rate” of 95%, meaning that 95% of the cases before that mediator had settled. But I wondered: was every one of those settlements a “success?”
Assuming a perfect correlation between settlements and “success” in mediation seems no more valid than assuming that “success” occurs when my cake in the oven is done. Yes, we set out to bake a cake and now it’s done. Yet how many will it feed? And will all to whom it will be served like it?
Now, mediators are often competitive persons who understandably can regard a case that didn’t settle as a failure. However, competitive instincts shouldn’t tempt a mediator to employ every known device (including indiscriminately belittling the merits of both sides’ cases) merely to wring a settlement. Rather, as a prefatory note to the Uniform Mediation Act observes: “The primary guarantees of fairness within mediation are the integrity of the process and informed self-determination.”
"Informed self-determination" is enhanced when the mediator establishes a process designed to promote fair, informed settlements. An optimal mediation process is itself a measure of “success.” The relatively high rates of satisfaction (and of settlement) that an optimal process generates certainly are much more than icing on the cake, but they are not the entire cake.