In Mediation, Who Gets To Say “We’re Done”?

From John DeGroote’s Settlement Perspectives

It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual: This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.

Since those early days I haven’t given much thought to why the mediator — rather than the parties — gets to end the session. But in a recent mediation headed for impasse the lawyer on the other side almost ended the day with “I guess there’s no reason to keep talking, is there?” in a late afternoon joint session, and I understood.

Who Will Be the First to Send a Message?

Mediation is admittedly a bit awkward, if not unnatural. For its success the process requires parties and their paid advocates to stop fighting long enough to work toward a compromise acceptable to all. A series of concessions, conditioned on reaching a settlement, ends in a deal or a return to conflict.

If settlement can’t be reached, most parties and advocates immediately look for a way to turn up the heat on the other side — to send a message reinforcing the consequences of not settling. While I have said before that a “failed” mediation is a perfect time to settle halfway, the traditional response is to remind everyone that conflict has resumed as quickly and convincingly as possible.

Don’t Jump the Gun

In my recent mediation, our second meeting was no more successful than the first. By late afternoon we were still stuck. Everyone was ready to head for the airport again, but I thought there might be one last big move left on each side. Our mediator gathered a few of us together to see if we could reach common ground.

A few minutes into our afternoon joint session — a risky move in itself — one of the lawyers saw impasse coming and understandably began the notebook closedown process, highlighting his return to advocacy with something like: “It looks like we just see the case differently,” followed by “[a]pparently we don’t have much more to talk about.” Fortunately our mediator quickly intervened, surprising us all with a reminder that he, rather than the parties, would tell us when it’s over.

Once our mediator refocused us on why the case should settle and how we could get there, we began to make progress that afternoon — enough progress that the mediator was able to formulate a mediator’s proposal that got the deal done shortly thereafter.

Lesson Learned

The lawyer on the other side of my case was, and is, a good lawyer who did what most of us would have done. He began to remind us that the concessions would end as the conflict resumed. But the settlement achieved serves as a reminder of what’s been in the mediation manual for over 20 years: Don’t leave until the mediator tells you today’s session is over.

You’ll be glad you didn’t.

                       

John DeGroote

John serves as a mediator and arbitrator in complex business, technology, and intellectual property matters involving parties and interests around the country and beyond — often before litigation is filed. Prior to his service as a mediator and arbitrator, John served as the lead settlement negotiator in hundreds of cases,… MORE >