This was an interesting week. I mediated three contentious, litigated matters. In each, at least one of the two attorneys were familiar, trusted clients to me. They knew my process and I knew I could trust them to be civil, professional and ethical. After we began the negotiation, in each instance, either the parties or their counsel grew frustrated by the snail’s pace at which the opposing party was moving. I did something a bit out of the ordinary for that phase of the mediation: I invited the two lawyers (without their clients) to come together to discuss how they might be able and willing to settle the matter. For me, a joint session during the negotiation phase of the mediation felt as though I was taking a great risk of losing control of the process and potentially isolating the clients from their counsel. At the time, it also felt like it might risk blowing up whatever progress we had made up until that time. Much to my delight, each time I brought the lawyers to talk and simply asked them to talk candidly to one another, the lawyers were surprisingly forthcoming about what they might recommend to their clients and what it would likely take to reach an agreement. After several hours more, each case settled.
My conclusion: sometimes the best service the mediator can provide is to get out of the way and simply facilitate an open dialogue between the parties and their counsel. If they are earnest about wanting to get their case settled, they can find the way together. And, by the way, wouldn’t that be an awesome approach to the civil unrest we’re experiencing right now? Dialogue. Openness. Civility. Exchange. We are, after all, all in this current mess together.
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