The Priceless Ingredient in Mediation …… ‘Good Faith’
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27th July 2024
There are many important ‘pieces of the jigsaw’ that need to be put into place for a conducive mediation process, and arguably even more to reach a successful resolution and/or settlement through mediation.
Yet, we need to appreciate that there is what I believe to be a vital and invaluable ingredient for mediation. This is one not brought about by the mediator(s), but by all parties to the mediation (most notably the disputants) …. and that is the crucial ingredient of ‘good faith’.
In referring to ‘good faith’ in mediation, I would frame this as:
“Entering into mediation with a view to respect the process, and the participants, and with an intention of making every effort to genuinely reach an agreeable resolution to the dispute”
Feigning ‘Good Faith’
It is not unknown for a disputant party to enter into mediation without ‘good faith’, even though it may mean they incur a financial cost or a notable ‘cost’ in terms of their investment of time and/or effort. Whilst some may view this feigning of ‘good faith’ as a brazen act of knowingly lying or being disingenuous, I don’t believe this always to be true.
The purpose of doing this maybe for a variety of reasons; from just prolonging the dispute process and making another disputant ‘suffer’ in some way, or more notably, to falsely ‘tick a box’ in the dispute and legal process, to demonstrate they have entertained mediation in the dispute resolution process, to the likes of a court or arbitrator should the dispute then be referred to the more ‘severe’ and costly arenas of arbitration or litigation. This is whereby a ruling, judgment, and award are imposed, rather than a resolution agreed.
‘Good Faith’ Could Develop in Mediation, If Not Be Contagious
However, I believe that even a disputant party entering the mediation process without (or feigning) ‘good faith’, could develop said ‘good faith’ during the mediation lifecycle itself.
This development would most likely be achieved through the skills and actions of a professional mediator(s) in demonstrating the nature and benefits etc of mediation effectively to the party. Possibly even through the actions and mindset demonstrated by the disputant’s legal counsel, the other disputant(s), and any others involved in the mediation.
The other thing to note with mediation is the many misconceptions and ‘false narratives’ about mediation, such as how it works, its benefits, what can be achieved, and the mediator’s role.
So, whilst some parties to a mediation may (as mentioned previously) feign ‘good faith’ deliberately, it is perfectly reasonable to presume that some initially feign this unwittingly based on misconceptions about mediation. Thus this problem of misconception of mediation should be easily rectified by a professional mediator(s).
Could One Strength of Mediation Also Be Considered One of its 'Weaknesses'?
Whilst mediation has many strengths and benefits, one of its core strengths could actually be considered an indirect weakness when it comes to factors relating to ‘good faith’ and can potentially pose additional challenges for the mediator(s).
This particular element of mediation is allowing for the disputant parties to be in control of the outcome of the mediation and allowing them their own free will to firstly agree to participate in mediation, and ultimately to walk away as and when they wish to do so. Whilst part of the mediator’s remit is to encourage the parties to continue mediation, if they believe a settlement and resolution is realistic, they cannot force a disputant to continue in the process if they don’t wish to.
As such, this allowance may ‘leave the door open’ to those who start the mediation process lacking ‘good faith’, to leave the process prematurely to the detriment of the mediation and most (if not all) of those involved.
Can ‘Good Faith’ Facilitate Pro-Bono Mediation?
One of the biggest frustrations for me as a mediator, is the lack of feasibility in being able to legitimately offer pro-bono mediation (civil and commercial) in the vast majority of cases where it may be required. However much a mediator may try to ascertain ‘good faith’ in the disputant parties (and their legal advisers) before taking on a dispute and applying mediation, this cannot be guaranteed.
One of my mediation mentors used to say that disputants involved in mediation need to have ‘skin in the game’ if only to encourage active and meaningful participation in the mediation process. Although that ‘skin’ may be demonstrated by an investment of time, effort, money etc; it still does not guarantee that ‘good faith’ is to be demonstrated. Whilst some may cynically believe that this is just an excuse for mediators not to offer pro-bono mediation, I believe it to be true. Not least, until there is a way to ‘bottle’ and guarantee the prized asset of ‘good faith’ in mediation; it makes the case for pro-bono effective mediation quite difficult.
Yet, if there was a way to guarantee ‘good faith’ to be demonstrated by the disputants (AND their legal advisors) in the mediation, then this would be ‘priceless’ to the mediator and the mediation process, and thus make pro-bono mediation feasible.
‘Good Faith’ in Mediation is Not Costly, But It Is Priceless
As a professional mediator, I will not take on a dispute unless ‘good faith’ is evident by all the disputants and their advisors (or I believe it could truly develop during the mediation process), as well as the fact that they understand the core principles of mediation.
But whilst ‘good faith’ cannot be measured, guaranteed, or (in effect) ‘bottled’ – I believe it remains the vital and invaluable ingredient for successful mediation, whether for civil and commercial mediation or almost any other form of mediation.