February 26, 2020 Practice Points

The Mediators Speak: Should You Book a Half-Day or Full-Day Mediation?

Two mediators discuss the pros and cons of a half-day mediation.

by Jeff Kichaven and Paul J. Van Osselaer

Jeff Kichaven:

A half-day mediation does not equal the first half of a full-day mediation. When you book a half-day, the mediator will try to get the mediation done in a half-day. Too often, that leads to shortcuts. What’s omitted could harm your chances of settling, as well as your client’s satisfaction with the process and your performance as counsel.

Client satisfaction depends on client engagement. Dissatisfied clients are those who sit like stones while lawyers sling offers and demands back and forth, seemingly untethered from the merits. Estranged and alienated from the process, these clients don’t understand why they paid more or took less than they believe they deserved. Even when they make an objectively reasonable deal, they’ll likely leave disoriented, bewildered, unhappy. That they may all leave equally unhappy is cold comfort to lawyers who depend on satisfied clients for future business.

Yet in a half-day mediation, wham-bam bargaining and documenting the deal are generally all we have time to do. Plaintiff starts sky-high, defendant starts oh-so-low. The sides grind toward each other, inch by inch, and then, maybe, with grumbling acceptance, close a deal.

This may be enough for straightforward collection matters or tort cases where liability is clear and damages are modest.

But most readers of this column handle cases more bespoke than that. For your cases, a more complete process is needed, one that generally requires a full day.

In a full-day mediation, we have time for two functions in addition to bargaining: Establishing rapport and exchanging information.

Clients participate more actively, more warmly, in these stages. They’re more likely to engage. The mediator has time to talk to you and your clients, get to know your clients and their concerns, and assure them they’re participating in a fair process where the merits matter.

The sides often have a joint session, where direct communication diffuses the demonization litigation breeds. Clients hear for themselves information that convinces them they should consider paying more or taking less—for good reason. Clients can even be more actively engaged in the bargaining. In subsequent caucuses, we have time for more comprehensive discussions of the merits, not just the formulation of strategic offers and demands.

  In this mediation, you and your clients work shoulder-to-shoulder. Clients are far more likely to understand exactly what’s happening and why. That’s because they’re participating in decision-making every step of the way.

As the fortune cookie says, “You don’t have to work very hard to convince someone of the wisdom of their own ideas.” In this mediation, settlement becomes as much your clients’ idea as your own. Client satisfaction? You bet!

Don’t shortchange yourself. In cases of any complexity, book a full-day mediation.

 

Paul Van Osselaer:

It depends who you ask! Coverage mediations are typically full-day ventures, but some stretch over several days. Periodically, a party asks for a half-day saying its position as so obviously correct and the issues so simple that “we ought to know within an hour or two whether we can get something done.” The other side either agrees (but thinking things are obvious in the other direction) or wants a full-day saying “you’ll need a full day to beat up on them.”

For me, the presumption is full-day. In 2019, I only did 3 half-day mediations (with 2 being the same day involving the same counsel, same carrier and only slightly different facts). Here are five things for the parties and the mediator to consider before making the decision:

1.      The adage that parties fill the time they have has some merit. But you don’t know whether that is true in your case until you are into the throes of mediation. If it is unsuccessful, what are you going to do if more time is needed and circumstances don’t permit it going longer? How will it affect your case and clients’ attitude toward settlement in the future?
2.      Your belief that decisions can be made quickly may not match how the other client—or even your client—will make decisions on game day. Sometimes it takes a while for parties to come to grips on risk. Implying “hurry up and change your mind” is not a good strategy for a mediator. Time pressure sometimes works, but it’s the exception.
3.      How large or complex is your case? Numerous issues and larger dollars make it less likely a half-day will work. And if it’s more than two separately represented parties, count on it being a full-day.
4.      Will there be openings? Without delving into their merit, they take time, which can be a precious commodity in half-day mediations.
5.      Consider the mediator’s schedule and interests. If your half-day is the morning and the mediator has one scheduled for the afternoon, yours has no flexibility on end time. Also, unless the mediator routinely does half-day mediations, a half-day one takes the mediator’s full day—meaning a full or multi-day one can’t be booked. My solution to that lawyers seem to appreciate: Since the great majority of my mediations are out of town, I only do half-day mediations in two-party cases that are on Fridays, in Austin, and booked in less than 30 days.

Your dispute is unique and it’s yours. So, before making a final decision on whether to book a half-day or full-day, call your mediator perhaps with your opposing counsel. Explain your case and get your mediator’s view on the subject.

Jeff Kichaven is with  Jeff Kichaven Commercial Mediation. Paul J. Van Osselaer is with Van Osselaer Dispute Resolution PLLC.

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