So, you’re preparing for mediation – whether you’re the mediator or an attorney representing one of the parties.
You’ve reviewed the significant evidence and the arguments that can be made from that evidence. You’ve considered the parties’ submissions. Perhaps you’ve made notes to remember during the mediation.
Here’s one to always include: Be patient.
Time is likely the most underappreciated contributor to a successful mediation. Without patience, time doesn’t get to work.
The Role of Patience
There are many reasons that patience can play an outsize role in mediation.
At the outset, recall the setting for mediation. By the time it rolls around, negotiation has probably already failed at least once. The parties are represented by attorneys who are confident in their case assessments and have expressed them to their client, meaning they’re invested – dug in – to their view of the case. They have also expressed their view to opposing counsel, which hasn’t been productive.
Mediation is likely a new experience for at least one of the parties. And because we live in a swipe left swipe right, take it or leave it world, people don’t get a lot of negotiating practice.
Given this, it is far too easy to conclude after the first demand and offer are exchanged, that the case is unlikely to resolve because the parties are too far apart. It simply confirms what they were thinking before mediation began.
Mediation is not a process of figuring out which side is more convincing, it’s a process of finding where both sides are comfortable resolving their differences. Neither side (or the mediator) knows where that point is when the mediation begins.
Attorneys often underestimate the time that it will take the other party to rethink their position. They aren’t necessarily considering that their position will change. What time does is allow the parties and their counsel to think about their case differently. What makes the other side take the position that they have? If we’re going to think about the case differently, how will that look?
Here Are Your Takeaways
Attorneys: Make a point to be intentionally patient. It will make the inevitable slow start bearable for both you and your client and will give you the best chance to settle your case.
Mediators: Decision-making is a process that takes different and unpredictable amounts of time for different people. Preview the process and encourage the parties – and their attorneys – to give the process the time necessary to work.
I often tell parties that the secret to mediation (in addition to a thorough discussion of the case) is simply giving the parties the time they need to decide. Be ready to do that.
See you at mediation.
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.