In any mediation, the parties and the mediator may view the give and take differently.
From the parties’ standpoint, they may think it’s over as soon as they receive the first demand or offer from the other side. If that demand or offer is significantly higher or lower than they expected, they may immediately feel that they are too far away for the mediation to be successful—and may want to end it right there. Scenarios like this are not unusual.
From the mediator’s standpoint, it will probably take some time before she is able to help the parties agree on the issues and exchange numbers (if that is indeed what the case is about). When they finally arrive at that point, the mediator will not be surprised to hear that the parties begin by exchanging their most extreme settlement positions as a starting point. However, if the mediator has discussed settlement separately with the parties’ attorneys prior to the mediation having begun, and if the attorneys had been somewhat forthcoming, the mediator may already have some idea as to where each party hopes to wind up going into the mediation.
Even if the mediator has not done that, she should still be able to engage in a give-and-take with the parties. In fact, after the first settlement proposals are exchanged is when the real challenge begins. The give-and-take will include helping the parties evaluate the strengths and weaknesses of their own cases and hearing the other side’s views and needs. Oftentimes it will be the first time that anyone has objectively engaged in this discussion with a party. This will hopefully lead to the parties modifying their settlement positions and eventually, the gulf separating them becomes smaller and the parameters of a settlement can be seen in the distance. And eventually, achieved. Patience and persistence on the part of your mediator is essential to making this possible.
Sometimes a mediation may end with the parties apart and seemingly unable to bridge whatever gap remains. However, if the mediator keeps at it after the session in separate phone calls with the parties, she may learn that she was more successful than she—or even the parties—thought. The mediation may not have really “ended”; it just continues in a different form and, oftentimes, a settlement can still be reached. Indeed, after spending significant time in face-to-face mediation, exploring the possibilities of settlement and then being faced with the reality of having to dive back into the litigation or arbitration, the parties may very well be willing to engage in further discussions in an effort to bridge that gap. Sometimes the attorneys can do it on their own knowing full well that the heavy lifting was done during the mediation. The key is to keep at it if there is a flicker of light in the distance.
So—when is a mediation truly “over”? Sometimes, no one really knows.
If you have questions or comments about this process, contact me today.
Bart J. Eagle
Attorney & Mediator
1700 Broadway, 41st Floor
New York, New York 10019