Success without Success

I am hesitant to say that mediation has turn a corner here, aware that I may just be in a sweet spot of situations, but things are looking up, and on the heals of the affidavit impugning my character no less.

Yesterday, I had a mediation with parties both local and international (and I know I have not spoken with much specificity about my mediation sessions, which is a direct result of abiding by the Commercial Court's Confidentiality rules concerning everything involved with the mediation--which means I will use as many details as I can without breaking the rules so you can understand the situation). In this mediation, I had a person who had flown in from another country far away the night before and was flying out the next day, so the pressure was on to try and reach some sort of settlement or resolution. As it turned out, we did not settle, and yet I consider the mediation to have been a rousing success. How is that, you ask?

First, something about mediation. As I was trained, the goal of mediation is to help the parties come to "informed decision-making." This means that regardless of settlement/resolution or not, you can be successful in mediation. As much as I identify with that, I have been skeptical, focusing more on trying to get the parties that come through my office to find a resolution either through collaboration--possibly in the form of future business dealings together--or in the form of compromise--negotiating a settlement between the parties so that they can both move on. Mediation is mandatory here in the Commercial Court. EVERY case that is filed is supposed to go through the mediation process to either settle or be sent back to the judge for adjudication. So there is a real desire to see the parties settle their dispute, not only for the parties sake but also for the court's sake in reducing the back log. But let me pause to say once again: I CANNOT MAKE ANYONE SETTLE. Just wanted to make that clear once again.

So here is a large dispute over somewhere in the neighborhood of 1/2 a Million US Dollars, large international companies and local companies, a person who has flown a long way, and here we are mediating. We go around for about two hours then I split the parties up and start caucusing (private meetings with each side), and it comes down to the fact that one side is not in a position of willingness to collaborate or compromise. I push and prod and appeal to every angle I can see or think of, from the risk of court to the strength of the claim, to help them assess whether there is any avenue of resolution. And when it came down to it, there was no avenue, at least that I was able to find. And though the other side made an initial offer, there was no compromise. When we concluded after three hours of mediation, I encouraged the parties to keep talking with each other, and one of the parties said they could use more information to assess its position, to which I encouraged the parties to help each other and let them all know that if they would like to come back--because Court would be at least 8-12 months away--that I would leave room on my calendar for them to continue mediating.

Afterward, the person from the country far away, who was a lawyer and also a mediator, said that it was one of the best mediations they had been apart of (which really wasn't a bust to the ego as much as it was an encouragement to keep trying, because positioning yourself in the middle of conflict all the time gets tiring and really discouraging if people do not come to a resolution despite all your efforts). Everyone walked away, though without a resolution, with a better sense of what the situation was from both sides and how to possibly move forward in the future. Essentially, they both came to an informed decision--one with a willingness to compromise and the other with the realization they were not in a position to meaningfully compromise.

And that was an instructive moment for me. Success in mediation does not always mean settlement: a lesson I needed to learn.

. . .but here's to hoping that more resolutions happen (which they already are--I look forward to telling you all the best story of mediation so far in Uganda, but I need to wait a little while longer to make sure it fully concludes before I share).

Peace to you all.