Since 2003, when I quit litigating, I have never attended a mediation as a disputant–until last week. Unfortunately, my parents, both age 87, were named in a messy business dispute which required us to hire outside counsel. Luckily, both sides to the dispute had the wisdom to know that an early mediation would be the best alternative to long and expensive litigation against my aging parents. Of course, this also meant that I couldn’t be the mediator. So it was that I found myself in a different position than my usual “head of the table”. Here were my observations:
1) Those long lapses between “visits” by the mediator did not seem as long as I thought they might. Our “side” was always engaged in strategizing about “next steps” and absorbing and reacting to the last.
2) There really was a moment of transformation where my family accepted the possibility that the facts underlying this lawsuit could be viewed from a different light. We did not, as I recall, admit that aloud to one another. But there was a subtle acceptance of risks that we had not appreciated before the very credible mediator presented them.
3) Spending a full hour in “pre-mediation” separate telephone calls really served the mediator and the parties well. We never felt the need to go over the facts that were outlined in the brief in excruciating detail because from the moment we began it was clear that he understood them.
4) The mediator built up enough trust and rapport that my family wanted to invite him for dinner. By the time he suggested the terms for a proposed settlement, he had them. I, on the other hand, still felt there was more negotiation that could have been done, but I was outvoted in favor of “just saying yes”.
5) I really regretted the mediator’s decision to introduce counsel and the parties to one another. They had never met and I was determined to at least facilitate a face to face greeting so that my mother and father would not walk around with a demon in their heads for the rest of their lives. Since the mediator chose not to do that at the outset, we did it informally at the end, but in my opinion it was awkward and not well served by then, once my parents had agreed to pay much more money to the Plaintiff than they believed was due.
I wonder if any other mediators have had this experience and what lessons you may have learned from participating in a mediation from another perspective than Mediator?