Many veteran lawyers and mediators have that “one war story” about a mediation that lasted longer than anyone ever expected – stories abound about mediations that continued into the wee hours of the next morning.
Under Wis. Stat. Sec. 807.05, there is no such thing as a “handshake deal” in a mediation – it is worth less than the paper it is not printed on. Therefore, a days’ progress made but not documented in a binding written agreement is tenuous and may even prove to be illusory. This blog discusses the pros and cons of mediating overtime.
Carry On or Reschedule?
In Getting to Yes – the 1981 seminal mediation reference book by Roger Fisher and William Ury – the notion of BATNA or “Best Alternative to a Negotiated Agreement” was thoroughly explained. In other words, if I cannot get an agreement, what is my next best option? Trying the case? Walking away?
Like everything in life, it depends on the circumstances. Here, we are looking not at walking away or setting a trial, but instead postponing the mediation to another day. For example, if it is 7 p.m. and much progress has been made, but there is still a long way to go, when does it make sense to carry on, versus rescheduling?
Overtime Pros and Cons
The pros of moving ahead into overtime are relatively obvious.
If we have come this close, why not push ahead and get the deal done? After all, we veteran mediators know that the psychology of continuous persuasion and the sunk cost fallacy proves that the longer and later the process goes, the more likely the parties will want to get to the finish line. Rescheduling to a subsequent session later could allow the parties forget (or at least discount) the time and effort they had already expended.
Brent D. Nistler, Marquette 1999, is a partner with Hansen Reynolds, LLC, in Milwaukee, where he concentrates on civil and criminal litigation. He also mediates civil litigation matters.
Also, when parties go home, they may overthink the events of the day and harden in their positions with all the idle time between sessions without a mediator to keep them focused on their goal of resolution. Worse, they may talk to friends and family who are well-intentioned, but have less than perfect information that might encourage them to harden their position.
There are cons to mediating overtime as well. Inevitably, one of the parties is going to have more stamina and energy, which may give them an unfair advantage, at least in terms of the perception of the more tired party.
As people get tired, they may soften, but there is no guarantee. In fact, if either of the parties is less able to regulate their emotions when exhausted, they may terminate the mediation rather than rescheduling it. Finally, the later the agreement is signed, there may be more concerns as to whether it was fully understood and truly agreed to.
All of these things should be taken into consideration.
Overtime Best Practices
If you are considering mediating in overtime, here are some best practices:
Feel free to persuade the parties to stay, but at that decision point, make sure it is their decision and not yours. Make sure you have their buy-in. It may be as simple as having them co-sign a simple agreement that they have thought about it and have decided to stay longer than anticipated.
Make sure you have a template document ready to go, so that the issues are narrowed as much as possible. Try to narrow those noncontroversial issues when the parties may be stuck on larger issues.
For example, if the parties are $50,000 apart on the payment, you can still discuss nonmonetary terms such as a nondisparagement clause or a release. That way, you can use time efficiently.
When the last major sticking point is resolved, the parties are not forced to negotiate a number of minor issues they had not thought about while doing the heavy lifting on the bigger ones.
Conclusion: Each Situation Is Different
Ultimately, whether to mediate into overtime is a judgment call that largely depends on the personality of the participants, the subject matter, and an educated guess based on experience as to the likelihood of success.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.