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June 25, 2021 Practice Points

The Mediators Speak: What Can We All Do To Make Mediation Sessions Go Faster?

Two mediators discuss the value of allowing a mediation to proceed at its own pace, without rushing the participants.

By Jeff Kichaven and Paul J. Van Osselaer

Jeff Kichaven:

When your spouse is taking too long to get ready for that big night out, what can you say that will (a) speed things along and (b) ruin neither the evening nor your marriage?

Nothing. Absolutely nothing.

So it is with mediation. When you think the other side is taking too long to get to yes, there’s really nothing we can say to speed them up. People come to settlements in their own time, and it’s good that we let them. That’s because the goal of good mediation is not a rushed, pressured, settlement-for-settlement’s-sake that leaves people feeling empty. The goal of good mediation is settlement, if at all reasonably possible, to which people come of their own free will and which thereby makes them feel fulfilled.

Here’s why it takes time.

People often come to mediation with unrealistic expectations. Getting those expectations down to Planet Earth takes time. Generally, humans need to exhaust themselves striving for their hoped-for result before they will consider more realistic solutions. Different people take different amounts of time. Perhaps their lawyers have unsuccessfully urged these more realistic solutions on them previously. If so, the retreat requires additional degrees of pride-swallowing, which can take even longer.

In many mediations, we therefore see a mid-afternoon doldrum. In the morning, we exchange whatever information needs to be exchanged, and parties bargain as hard as they can. In the early afternoon, people see they can’t drive their hard bargains; counter-parties won’t accede. By mid-afternoon, reality starts to sink in. Hence the doldrum. People have held their hopes high for months or years. To see them dashed in a day can shock the system.

Viewed this way, we should be grateful any time we can recalibrate expectations and settle a case in a single day. It seems that every year, fewer and fewer cases settle that quickly. Most every mediator will say that follow-up has become a more important part of the practice. So often, the mediation day sets up the settlement to follow as the water of reality drips away at the rock of unrealistic expectations.

But most every mediator will also say that, all else equal, we would love to get the settlement inked then and there. Mediators know that if we let people leave before they sign on the dotted line, there’s a material risk that all progress in the negotiation will evaporate and the likelihood of a deal will shrivel.

That’s why good mediators ask people to be patient and stay late. That’s why good mediators maintain cheery persistence when hope looks slight. With apologies to F. Scott Fitzgerald’s final line from “The Great Gatsby,” that’s why good mediators beat on, boats against the current, borne forward ceaselessly toward the deal.

Paul J. Van Osselaer:

Admittedly, some mediations could go faster, but the fact is they take time because people are trying to get other people to change their mind. And “change your mind quickly, please!” Few people admit quickly that they are wrong in an assessment of risk—or anything for that matter. But with some time, people find it easier to acknowledge they may have been wrong or at least that their assessment is subject to re-evaluation. As the mediator trope goes, “it’s a process.” That process can’t be rushed.

Faster mediations would be nice, but the goal should be to make them efficient, not faster. I recall the doldrums waiting for a mediator to return to my room. Now, as the mediator, the day usually flies by. (Perhaps I should have kept that to myself.)

The good news is that there are ways that attorneys and the mediator can make the process more efficient (“faster,” if you prefer) and better for decision-making.

  • For Attorneys: Make sure clients are as knowledgeable about other parties’ positions as they are about their own. Where parties have exchanged mediation statements or where there have been cross-motions for summary judgment, I often ask clients whether they have read the other side’s briefing. People give more weight to positions that confirm their own belief and undervalue what doesn’t support it. Understanding what the other side is saying is the first step in critical evaluation of one’s own position.
  • For Attorneys: Make sure your opponent has reasonably needed information in time to evaluate it. There will be discovery disputes and reasonable refusals to provide information but waiting until mediation day to provide information that could have been provided earlier is a common cause of delay.
  •  For Attorneys: Have settlement discussions before the session. There may be good reasons not to, but it helps prepare clients for what they will face and triggers discussion of other information that may be needed. Is it even the right time to mediate?
  • For Attorneys and Parties: Recognize that what seems like time-dragging for one party may be necessary time for another. You want opponents to have information they need to consider your position. Sometimes they need time too.
  • For Attorneys and the Mediator: Schedule a pre-session conference call (or, in large cases, meeting) with the mediator. Mediators want very much to hit the ground running on mediation day. Also, try to meet the mediator’s target date for statements, so there is time to digest it for a meaningful pre-session conference.
  • For the Mediator: Manage time with a party with a goal in mind. It is important to develop rapport with parties and to allow them to express themselves as necessary to be heard and comfortable, but it is equally important to keep parties focused on things that will get to a settlement. Managing without rushing is the art.
  • For the Mediator: Appreciate that just because the day is flying by for you, it may be dragging on some parties. It is a matter of communication. Parties don’t want to play “Where’s Waldo?” looking for the mediator. If possible, I try to leave a party’s room giving them something to think about for discussion when I return. Sometimes I just duck my head in a room to be visible and providing a brief update if I can.

I’m thinking about some mediations coming up and grading them based on the above. Grades range from A+ to a B-. How fast will they go? We’ll see. It’s a process.

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

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