Frequently, I have found myself in the later stage of a protracted mediation proceeding saying: “Well, I just won’t get on the treadmill this evening!” This usually follows the 15th or 16th intercaucus trip, with no end in sight.
Is this bad? Of course not. Just the venting of an occasionally tired mediator. In fact, whether a settlement takes five trips or (God forbid!) fifty-five trips, if agreement is reached, how can it be other than good. And the result likely is one that could not have been reached in a one-on-one negotiation between counsel, because at some stage one or the other would surrender to pique and frustration and close down discussions, thus driving the parties to trial.
Can this sometimes comical routine be avoided? Probably, but it depends largely on the mutual respect between or among counsel for the parties and the realistic attitudes of all involved. Respect often relies on a prior working relationship between counsel, so, if they do not know each other prior to the proceeding, the difficulty can be pronounced.
At times, leverage and raw, financial power is at work, where one party intentionally drags out a mediation with small, incremental moves in order to impose an intimidatingly growing mediation expense on the other. But what else is new. Isn’t this what often happens in litigation, where one side has legal resources way in excess of the other and uses that ammunition to try to overwhelm the opponent. It is an unfortunate but very real aspect of our otherwise excellent legal system. And, in the context of mediation, the relative additional cost is not that significant.
The push and pull of negotiation psychology, if not simply the forces of human nature, makes elongated negotiations, in or out of mediation, a reality that parties and counsel must face.
Mediators, too, have a responsibility for taking certain measures that can shorten the process. Care has to be taken, however, lest one or the other side be offended by what may be perceived as “pressure tactics,” a method to be avoided by mediators.
So, all you attorneys and mediators, don’t be discouraged by the sun going down during the course of your mediation. It happens, and, if it ends successfully (ready for a tired cliché?), all’s well that ends well. And the mediator gets a physical workout that he or she probably needs anyway.
And, always remember, that an alternative filled with stress, delay, expense and uncertainty lies happily awaits every failed negotiation.
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