Apple and Samsung are embroiled in another patent dispute[1]. Their trial is set for 31 March 2014 and it appears that their attempts at mediation have not succeeded. Without doubt they are sophisticated parties who no doubt have excellent representation. Yet mediation did not work for them.
In Kiev, the protestors and President Yanukovich have staggered from a series of mediated settlements and ceasefires, none of which held. The stakes in the Ukraine are high as the political stability of the country hangs in the balance. And yet the mediation has been unsuccessful.
The Syria mediations have as yet yielded no solution to the ongoing turmoil and suffering. The attention of the world has been focused on these negotiations between the Syrian government and the opposition.
If mediation provides parties with a respectful and constructive way to solve problems, how can it go wrong?
Given that people are involved there are many diverse ways in which a mediation can fail. Regardless of why the three examples above have failed to result in a solution there are some basic problems, which can prevent even the most talented mediator and the optimal conditions from resulting in a settlement.
Timing
As with comedy, the secret is timing. The mediation needs to occur at the right time in the dispute. At the beginning of a dispute, there can be high emotions, which may prevent the parties from considering a negotiated solution.
Many people in conflict believe in the ultimate virtue of their position. They are either victims of injustice or heroes defending against a terrible foe, both positions can lead to intransigence. If an attempt at a negotiated settlement happens too early, people may be comfortable in their positions. At the beginning of a dispute, it may seem as if the chances of victory are high thus encouraging people to cling to their perspective.
The parties need to be ready to negotiate. This may occur for many reasons, perhaps there has been enough pain inflicted on them, or perhaps the chance of success seems less realistic. It may be because the parties have realised that there is more that binds them than separates them and that resolving their problems is a more productive use of their time. Or it may be a solution borne of exhaustion. Whatever the reason, selecting the timing for a mediation can be critical.
Trust
One complaint often heard by mediators is that although one side is willing to commit to a negotiated settlement, the other side is not acting in good faith. It is possible that each side will express the same reservation about each other.
In any negotiation, the requirement for good faith from each party is a pre-requisite. If parties have been engaged in a conflict for some time, it can be difficult for them to trust the other side sufficiently to make concessions or agree to anything.
Creating ways in which the parties can demonstrate that they are acting in good faith is one way in which mediators can help the parties convince each other of their honourable intentions. In recent violent state disputes, we have seen this in the use of ceasefires. In a simple mediation, it can be giving both parties the chance to start making agreements in a small way such as setting dates for mediation, or the agenda. By making these small agreements and keeping them the parties can help restore their credibility.
However, it is important to note that trust is a delicate creature and that breaking even small agreements in a mediation can erode all chance for a successful agreement. As we have seen in many of the state disputes recently, each broken ceasefire makes it more difficult to convince the parties back to the negotiating table.
Delusions
A powerful preventative to negotiating can be the perception that if there is no negotiated solution, the party will get what they want. This may take the form of believing that the other side does not have the resolve to see the conflict through to the end. Or it may be prompted by a belief that a third party will intervene and create winner.
This can be difficult for mediators to overcome. In caucus, mediators may attempt to test the reality of a hoped for solution. Parties can become very wedded to the reality of an outcome and it may difficult to challenge the outcome as unrealistic. Mediators need to be prepared to work with a party to help them understand whether their views are based on logic or delusion.
Conclusion
There are many ways in which a mediation can be derailed but the powerful triumvirate of timing, trust and deluded beliefs can make a mediator’s role as the advocate of the process all but impossible.
[1] Apple Inc. v Samsung Electronics Co. Ltd. et al., C 11-1846 & C 12-0630