You thought that last mediation stretched out longer than it should have? When the clock slipped past the one and one half hour minimum, you began to suspect the mediator was padding the old pocket book? Well, maybe she was, but I don’t think so.
The mediators I know do not keep their eyes on the clock, except to see how quickly they can help resolve a dispute and make their clients happy. I get nervous, for example, when the time is running and little progress is being made. It’s true. We have as much concern for billed time as do the attorneys who bill their hours to clients. Reputations of both are not made on the amount of money earned but rather on the amount saved–and, of course, the end results.
Ironically, sometimes the mediator’s dilemma is trying to decide whether to declare a mediation at impasse rather than waste more costly time, possibly at the expense of an unseen but imminent resolution lurking just around the corner.
What is the solution? Preparation, pure and simple. Yes, it takes billable time–or under a contingency arrangement, non-billable time, but still time–to prepare, but consider the valuable time to be saved. A well prepared, properly organized approach to a mediation proceeding by both sides saves the time of the mediator, the attorneys’ time, and the time of the clients–yes, their time has value, too.
It is helpful, in that preparation, to furnish the mediator a summary of the dispute. He or she will read this (on their own time, by the way) and have at least a sense of what is involved, thus being able to digest rapidly what they are told in the brief, opening statements.
In my own experience as a mediator, I receive summaries in no more than 5% of the cases over which I preside. Worse than that, I have had occasions where an attorney is not even sure he or she has the correct file. And, still worse, an attorney has shown up without having looked at the correct file, either because he or she hasn’t found the time to do so, or because the attorney is pinch-hitting for one who has worked the file from its inception.
This can happen when emergencies arise, but I fear, occasionally, there may exist an undercurrent of disregard for the mediation process itself. A terrible waste of clients’ money.
Mediation is intended to, and in most cases does avoid the cost, delay, uncertainty and stress of a trial. Yet, while an attorney would not dare be unprepared for trial, some will treat the opportunity of a mediated settlement lightly. Go figure.
Get with the program, folks. The brass ring of a win-win settlement is there for the grabbing. Make the best of the opportunity. Happy mediating…
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