• Philip Reich

The Balcony



Who doesn’t like a room with a view? Unfortunately, in many mediations, the parties, the lawyers, and maybe even the mediator get tunnel vision. It usually happens mid-afternoon, after lunch, after negotiating for 4-6 hours. Everyone loses perspective. Emotions begin to creep in. Instead of making progress, everyone seems dug in. And you begin to believe that light at the end of the tunnel is actually a train headed your way. It’s time to head to the balcony.

Most mediations reach this stage. It’s the point where the two sides are close to their goal, and it is evident that there will be no overlap once you get there – that settlement will be more challenging than perhaps you thought. This is where mediators really earn their money. This is where the real work – the serious negotiations – begin. But many mediations never reach this fertile ground because the negotiations are abandoned out of frustration.  Anyone who does a lot of mediations knows and anticipates this stage. It takes patience and persistence to make it past this point to see if a resolution is possible. One technique for helping the parties push through this stage is going to the balcony. It can be done figuratively or literally. It’s simply an adjustment to one’s perspective. When a mediation gets to this stage, the participants must:

  • Step back from the process to look at where they were and the progress that has been made.

  • Remember the reasons for compromise and the goals that have been established.

  • Reevaluate the basis for those goals, and simply take a breath before carrying on.

It’s a time to get out of the weeds and revisit the product of earlier brainstorming. Maybe a resolution that seemed unreasonable or improbable will make more sense now.  Maybe the interest declared earlier on were not the real or most important interests of the party. Maybe another brainstorming session will yield new settlement possibilities which were not illuminated previously.  A good mediator can not only sense when this wall is being approached but can actually coach the parties through this perspective-adjusting exercise. They can also give the parties some space to catch their breath and relax. Literally going outside for a breath of fresh air can be what converts an impasse into a stepping stone.

Don’t fight the need for a break on the balcony, but remember to use it productively.

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©2020 by Philip Reich.

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