When I began offering my services as a mediator more than 16 years ago, I held myself personally responsible every time a mediation ended in an impasse — convinced that I had failed to do my job and had let down the parties and their counsel.
Intellectually, of course, I understood that mediation was a complicated process and that it wasn’t possible to reach a resolution in every mediation. However, it took quite a bit of time before I was able to accept that fact and actually embrace it. Once I did, liberating myself from “the outcome” and focusing instead on “the process” and “the progress made,” I became a more effective mediator.
Fast forward to the present day when — for reasons unknown — there’s been a noticeable uptick in the number of disputes I’m not able to resolve on the day of mediation. In fact, It happened again just the other day. Apparently, I”m not alone — colleagues have reported the same phenomena.
Whether this uptick is a result of the Zoom-mediation era or something else entirely, I found myself once-again engaged in some heavy-duty soul searching this past weekend, wondering whether there was something more I could do to address “the problem.”
The first step was to remind myself that it’s not “a problem” when the first mediation does not result in a resolution and that it’s a mistake for anyone to think of it that way.
There are a host of reasons the parties may not be able to reach same-day resolution, including:
- The sheer number of parties and/or complexity of the issues may dictate that one day is insufficient and that multiple sessions will be necessary;
- The parties may learn during the mediation, for the first time, that critical information and documents haven’t been exchanged and/or that critical witnesses haven’t been deposed;
- The parties may realize that a more thorough analysis of liability and/or damages requires the voluntary exchange of expert reports and/or the taking of expert depositions;
- Last-minute developments in the days leading up to the mediation may warrant reevaluation by the insurance carrier but may not yet have been fully communicated to claims personnel;
- The parties may arrive at the mediation with sincerely held differences of opinion concerning the value of the claim and may require additional time to evaluate each other’s arguments;
- The person with ultimate settlement authority may not be available because of time-zone differences;
- The parties may understandably need more time to absorb what transpired at the mediation, consult with loved ones and/or otherwise reassess their options;
- The parties may simply become frustrated, impatient and/or exhausted.
When client expectations are properly managed, the inability to reach a resolution at mediation because of any of the above is no longer problematic. Therefore, make sure your clients understand that mediation can be arduous and time-consuming, and that one session may not be enough.
If it becomes apparent during a mediaton that a further session might be necessary, meet with the mediator and opposing counsel to identify everything that needs to be accomplished before a meaningful second session can take place and to establish a realistic timetable for completion.
If witness or expert depositions may be necessary, identify potential dates for those depositions, allowing sufficient time for transcripts to be prepared and summarized before a second mediation.
If a joint meeting of experts — facilitatied by the mediator —, might make a difference, consider doing so.
If the parties value the claim differently, agree to gather and exchange published jury verdicts and settlements well in advance of a second mediation.
If the attendance of a spouse, other family member or business partner is anticipated, clear dates with that person before the first session ends or as soon as possible thereafter.
In my experience, when the parties use a first mediation to begin preparing for a second session, they often discover — with regular follow-up by their mediator — that a second session might not be necessary after all.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal