How Long is This Going to Last?
Have you ever heard this at a mediation, "How long is this going to last?" It says a lot, doesn't it? Usually, it's a party that says it. And usually, it doesn't bode well for a mediation that will result in a settlement. But what it says most of all is that whoever asked isn't very experienced at mediation. How long mediation will last, or better yet, should last, is best answered with, "No longer than it needs to."
Some mediators brag that they can tell at the very beginning of the mediation whether it will result in a settlement. While there may be some strong clues, it’s important for a mediator to hold out hope from the beginning of the mediation session so that an early impulse doesn’t unintentionally forestall an opportunity for settlement. After all, how many times has a case settled that you didn’t think would settle and vice versa? If the parties or a party has a negative attitude about settlement – like it won’t likely happen – studies show that is a self-fulfilling prophecy.
Cases where the parties are more optimistic about settlement are more likely to settle. So, as a mediator, we must always be positive and hopeful.
Being hopeful doesn’t mean that the parties should be kept or held longer than necessary. If a case really has no chance of settlement at that time or on that day or at that juncture, the mediator should be the first to pull the plug, leaving open the possibility of settlement discussions continuing thereafter. Perhaps some additional discovery needs to be completed, some other event must take place, some further evaluation must be done, or there is someone else who needs to be involved who is unavailable. And it could be that the reason the case cannot settle is not known or able to be disclosed to everyone. Hopefully, the mediator knows, but I don’t always.
Nevertheless, even if continued negotiations cannot be planned upon the occurrence of a particular event, it is important to leave the door open to future negotiations. How many times have you later settled a case which didn’t settle at the first mediation session? It’s important to remember that when terminating one so that the parties don’t unnecessarily impose an impediment to future negotiations.
At the same time, one of the most important elements of mediation is the process, which takes time. Time often has an impact on the parties and their willingness to settle. While it is never a good idea to drag a mediation session out unnecessarily, it is often a mistake to allow parties to prematurely terminate a mediation session simply because they are frustrated, impatient, angry, or feel a lack of control. Those feelings are likely only to be multiplied by the litigation process.
It’s important for a mediator to explore what is driving a party’s desire to terminate the mediation.
It’s also important for a mediator to be patient and willing to work with the parties beyond 5:00 p.m. Sometimes, despite everyone’s best intentions, the negotiations don’t really hit their stride until late in the day.