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December 23, 2021 Practice Points

The Mediators Speak: Ending a Mediation…?

Settlement at a mediation session is the goal. But lack of a settlement is not a failure if it is viewed as part of a process to which the parties and the mediator remain committed.

By Jeff Kichaven and Paul J. Van Osselaer

Paul J. Van Osselaer:

All mediation sessions should end in settlement. But that isn’t always the case. So, how should they otherwise end? Each mediation session will have its own party and negotiation dynamics, but here are some things to consider when a settlement on mediation day just isn’t in the cards.

  • When should it be ended? The easy answer is when all avenues of reaching a settlement have been explored. You work as late as you need to. We’ve all experienced breakthrough moments at a mediation session. For me as the mediator, when it appears we may be at an unsuccessful end, I have some decisions to make. Do I push through in a quixotic attempt at a breakthrough? Or does that strategy only solidify one or more parties’ intransigence? Is a later settlement more likely if there is a pause in the process? And if we push through, what more does each party have to give to that effort? Sometimes, pushing parties to a brink creates a situation not unlike repelling magnets.
  • Who should end it? The above implies that it is always the mediator’s decision as to how a mediation ends and when it ends. A mediator is best positioned to know when to declare an “impasse,” an “impasse for today” or a “pause” because mediators presumably have the best sense of all rooms. But sometimes parties stop the process themselves with refusals to make another move, repeated “try again” messaging to other parties, or by declining what the mediator may suggest for keeping the process going. In those instances, it matters how the end is conveyed to other parties. A party walking out (or logging off) is never a good strategy. Even when a party has effectively made the decision to end negotiations, the mediator can convey that decision in a way that keeps doors open for later settlement efforts, including addressing the next two questions.
  • What are the goals for an unsuccessful session? If a settlement can’t be reached on mediation day or shortly thereafter with, say, a mediator’s proposal, the goal is to have parties leave the session with both a better understanding of the issues and a much better sense of what a settlement could be. The parties should have made enough progress toward a settlement they are incentivized to continue thinking about ways to reach a settlement.
  • What are the next steps? On a more concrete level, the mediator should address the next steps for the parties and for the mediation process. What facts remain to be explored that will better help the parties in their evaluation? What legal issues may need early resolution? When is the best time to get back together or to have the mediator reach out again?

Settlement at a mediation session is the goal. But lack of a settlement is not a failure if it is viewed as part of a process to which the parties and the mediator remain committed.

Jeff Kichaven

Lawyers should never end a mediation.

Except, of course, when they should.

It all depends on how you define “end.” In one sense, mediations never end. If you don’t settle on mediation day, good mediators follow up and in time get the job done.

In another sense, mediations do sometimes adjourn for the day without settlement, for a variety of reasons. Fatigue. The need to do more factual or legal digging. An impasse in bargaining.

This last reason—impasse—deserves special attention. Impasse can be illusory, and there’s a real risk that a false impasse can lead you to end your mediation day prematurely. Just because bargaining is at a halt does not mean you have reached an impasse. So it’s important to ask: How can you tell whether an impasse is real?

When bargaining stalls, three safety-checks can protect you: Check with your client, check with opposing counsel, check with the mediator.

Check with your client. Clients can struggle mightily to achieve unachievable outcomes. Who can blame them? If you don’t ask, you don’t get. Still, at a certain point, clients may have to consider paying more or taking less if they want to get settlement’s benefits – the elimination of future hassle, cost and risk. If bargaining halts, and the halt lasts long enough, clients may be ready to consider new possibilities.

 Check with opposing counsel. If all counsel are committed to working hard and if settlement is at all reasonably possible, a little brainstorming might help. What might the other folks do to help generate some forward progress from your client? What might you do to generate some forward progress from theirs? Be open to the possibility that dialogue might lead to new ideas.

Check with the mediator. The mediator has likely spent time in private with the other side and knows things you don’t. Take advantage of this! While mediators can’t disclose confidences, we can use our inside info to suggest options that might not occur to you. Often, your clients’ concern is that if they make a difficult concession, the move will not be reciprocated. To meet this concern, there are lots of ways mediators can generate the appearance—if not the reality—of simultaneous movement. Brackets, what-ifs, and what-would-it-takes are just some of the devices in all in our bags of tricks. Don’t give up without giving your mediator a chance to pull a rabbit out of the hat.

If you have run the safety-checks and convinced yourself that your impasse is true, don’t just leave the mediation. Set the stage for progress down the road. Remember, almost all cases settle eventually. Often, lawyers will meet with the mediator and their clients to highlight areas where there has been progress and to outline what needs to happen next to set the stage for further negotiation or mediation. After all that, it might be proper to adjourn.

But until a case is settled. or adjudicated with finality, the mediation never really ends.

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

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