Expect the Unexpected: A Look at the Two Ingredients of a Successful Mediation

Thu, Jul 31st, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By Jason Harper

A little over two hours into the mediation and most of the pots and pans had been divided. Even child support, as meager as it was, was agreed upon. The wife was keeping the single-wide mobile home, and the husband got to keep his pickup. We were down to ironing out a visitation schedule for the children.

As a young mediator nearly 25 years ago, these were the type cases the court sent to me. Many times, the court was paying my fee for indigent clients such as these. Mandatory mediation was still somewhat new in the Flint Judicial Circuit, and the issue lingered as to whether all civil cases should be required to be mediated. Mediation was a relatively new concept, and many attorneys and litigants proclaimed that certain cases simply couldn’t be resolved absent trial. The question was whether mediation could be effective in bringing about an unexpected resolution.

I sat with that couple, seemingly as a part-time marital counselor, questioning what they ultimately sought while going over each of the issues. Suddenly, the wife slapped her hand on the table, startling us all. She leaned across to say to her husband with a Southern drawl, “I still have feelings for you!” With that admission, the two kissed — and abruptly agreed upon a dismissal of the case. Another case now off the trial calendar. The question was clearly answered. With the correct ingredients, you can expect the unexpected at mediation.

Ordering Mediation in All Cases

Years later, I had the privilege of donning a black robe upon being appointed to the Georgia State Court bench. On my first day in office, I signed off on the joint order with all the judges which mandated mediation in all cases. I still adhered to the view that each case has the potential for settlement when the parties sit down with one another prior to trial. I set out to enforce that view. With each civil filing, I entered a scheduling order which imposed a deadline for mediation. However, I soon realized it was an order with no teeth.

The Two Ingredients for a Successful Mediation

If there is ever hope of obtaining a resolution at mediation you need two key ingredients: the participation of those who have settlement authority, and good faith participation. My initial mediation order was woefully lacking as to both aspects. The first motion for contempt based on a mediation issue that I heard involved one party alleging that the other side had appeared at the mediation without someone with settlement authority. The other side accurately pointed out that my order made no such requirement. As a result, I had no ability to hold anyone in contempt of an order with no specific terms.

From that day forward, all mediation scheduling orders required mandatory appearance of the plaintiff and a claims representative — with settlement authority — on behalf of the defendant. I was confident then that my new order would compel meaningful mediations. I was wrong yet again.

I may have achieved compelling all necessary parties to come to the table under threat of contempt of a scheduling order, but in some cases that was all I achieved. I soon was presented with yet another motion for contempt for failure to participate “in good faith” at mediation. The movant wanted me to require payment of his side’s mediation costs and impose a requirement of a second mediation. Since my order literally only said to attend mediation, I had to amend it yet again to state that those attending would participate in good faith.

Throughout my time on the bench, I heard numerous motions that alleged the other side had not participated in good faith. It was a rare occasion when I could make such a finding. If litigants attend mediation and refuse to participate, that is a lack of good faith. If litigants attend mediation and refuse to pay a certain amount or refuse to accept a certain amount, that will usually not equate to bad faith.

A court, particularly the assigned trial judge, cannot assess whether an offer, or refusal to accept an offer, is reasonable. Both sides have demanded a trial by jury for the very reason that they differ on the very belief of value of the case. However, the “good faith” at mediation should be about discussing those differing viewpoints with a mediator who can point out potential risk factors for consideration for both sides. That type of discussion can change the settlement value or settlement authority (or both), and the case may resolve prior to trial.

The Goal of Resolution

After a decade of service to the bench, I hung up the robe to begin mediating full time. I believe that when the necessary parties attend mediation and attend mediation with an open mind, resolution can, and often does, happen, and I enjoy helping to make that happen. While I’ve learned that you may not be able to predict everything that happens at mediation, giving the parties the opportunity to address their dispute on their own — rather than laying it in the hands of twelve strangers — often results in resolution.

*Originally published in the Daily Report and reprinted with permission.

About Jason Harper

Jason Harper served as Judge of the State Court of Henry County for ten years prior to becoming Georgia’s youngest senior judge at age 45. During his tenure on the bench, Judge Harper regularly presided over cases involving medical malpractice, wrongful death, personal injury, and contract disputes. Additionally, Judge Harper regularly presided by designation in the Superior Court hearing domestic cases, including divorce, both jury and non-jury, as well as child custody cases. Prior to joining the bench, Judge Harper maintained a civil and domestic litigation practice and regularly served as a guardian ad litem and mediator in domestic cases. For eight years, Judge Harper served as a Special Assistant Attorney General representing the Georgia Department of Human Resources. His law firm also served as the County Attorney for Henry County, Georgia.