It’s Not Over Until…the First Juror’s Sworn? (Part 1)

It’s Not Over Until...the First Juror’s Sworn? (Part 1) by Bart J. Eagle

{3:00 to read} We know when a mediation begins. The better, and often more challenging questions are: when has it ended and was it successful?

If at the end of one or more agreed-upon sessions the parties settle all of the issues in the dispute, the answer is an easy one—perhaps. There is still drafting to be done, even if a memorandum of understanding, or term sheet, is executed by the parties before leaving the mediation room. In some instances, if sticking points arise, the mediator can help the attorneys to overcome the final obstacles.  

However, in most cases, having left the room in agreement on all issues, final settlement documents will usually be executed, and the parties as well as the mediator can happily announce that the mediation has ended; and ended successfully.

On the other hand, what happens if the parties, after hours of trying and despite their best efforts, and those of the mediator, are at an impasse? If the divide between the parties is great, the parties may not agree to additional sessions with the mediator and, indeed, at that moment, there may be no point in further sessions. Has the mediation ended? Was it unsuccessful?

For the dogged, persistent mediator, no; or at least, not necessarily. In many cases the parties are already engaged in litigation and in others, litigation may follow the impasse. That means that over time, things will change: discovery may continue; facts may be learned by a party, or even all parties, of which they may not have been aware; motions may have been made and decisions rendered, which may affect the leverage and bargaining positions of the parties; trial may be imminent; and more resources—both time and financial—will have been, and will need to continue to be, invested by the parties in the dispute. These are some of the “what if’s” that the mediator will ask the parties to consider early on.

Some or all of these developments may lead the parties to reconsider their positions.

In the next article, I will continue to explore this topic and discuss the “what if’s” posed by a mediator.

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