From the Blog of Phyllis G. Pollack.
Several years ago when I first became a mediator, I attended a mediation training session. The speaker threw out the question: who is the mediator’s client? While each of us came up with various answers, the speaker’s answer was quite startling: the settlement. The mediator’s client is the settlement.
Initially, I disagreed with the speaker, but as I mediate more and more cases over the years, I have begun to understand and appreciate this answer: my goal is to help the parties reach a settlement. I have done my job when the parties settle a matter due to my efforts. My goal is settlement.
But what the speaker did not discuss and what I have also grown to appreciate is that not every case is ripe for settlement at mediation. Sometimes, collateral events need to percolate to the top before the case is positioned for settlement. One example is the need for a vehicle inspection in a “lemon law” case: many times the manufacturer of the vehicle wishes to inspect the vehicle before resolving the claims of plaintiff at mediation.
Another example of this principle occurred last week. I mediated the second session of a matter. After many hours, the parties still had not settled. At the end of this second session, the parties either: (1) could not agree on only one remaining term but could agree on the amount of money; or (2) if the term was changed so that they were in accord, the monetary difference was minimal. They were ever so close but yet so far away. They had each “drawn their line in the sand” and would not budge.
That evening, I ruminated about the mediation, feeling frustrated at not having accomplished my goal: settling the case. I felt that I had let my “client” down. I had not done my job.
So, the next morning, I called each party to see if there was an alternative proposal that the parties would accept, thereby bridging the gap. I came up with such a proposal and made it to one of the parties.
When I did not hear back, I called that party the next day to see if the party would accept the proposal. I was told that a certain collateral but very significant event had occurred that changed everything. Because of it, the party did not know what it wanted to do. It had to sort out the consequences of the new event before pursuing settlement with me further.
To a certain extent, I believe in fate: things happen when they are meant to happen and for a reason. Looking back, I think fate intervened to prevent this matter from settling before its time. Had the matter settled before the intervening collateral event, both parties would have been quite unhappy with the settlement once the event occurred. Now, that the event has occurred, the parties will assess its impact on any settlement and decide whether in light of the collateral event, is it better to settle or go forward to trial?
Perhaps not every case is meant to be settled simply because it is at mediation. Perhaps the speaker at that training session long ago was more accurate than he realized when he said his “client” is the settlement. Like every other client, the “settlement” does not always “win.” Sometimes it wins, sometimes it loses. Just as no client always “wins” all of the time, so, too, does “settlement” not always win all of the time. Sometimes, fate intervenes. . . .
. . . Just something to think about.
REPRINTED WITH PERMISSION. This article was published in Alternatives, Volume 21, No. 3 (March 2003). A skilled mediator has had substantial training and experience, enough to have a “mediator tool...By Judith Cohen