On my drive to Knoxville one Wednesday afternoon in February, I was eagerly anticipating the mediation in which I would participate the following day. It’s not often nowadays that I get to see another mediator in action, but this would be an opportunity. I represented a party in a five party case, and I was going to see how this mediator – who had come highly recommended by opposing counsel – conducted his business. We mediators are not all alike, going about our business in vastly different ways. Through the years I’ve observed many and have incorporated bits and pieces from quite a few to develop the style with which I’m comfortable. The next day’s mediation would be another opportunity to learn from someone else.
Fast forward twenty-four hours. As I drove back home, with my client’s settlement in pocket, something was gnawing at me like a pet store poodle. Oh, it had nothing to do with the terms of the settlement – I had traveled to Knoxville with strict instructions and the settlement was well within the parameters of the authority I had. Rather, I was bothered by the way the mediation had been conducted, from start to finish. The Cliffs Notes version: We arrived, we settled, we left. The Jimmy’s Notes version: I’m not really sure what happened.
The mediation was held at the office of plaintiff’s counsel. I represented an intervening party with a financial interest that was separate from the plaintiff’s. There were three defendants, each pointing a finger at the other two. There was no opening session; instead I was whisked into an unoccupied office and told that I would be consulted as necessary. We began at about 9:15 a.m. Two hours later I had a strong sense that we were going to settle. Then things slowed down a bit. Shortly after noon the door opened and the mediator entered my room. Paraphrasing, he said, “Okay, this is what you need to do. You’re going to lower your last demand by $xxx, and I’m going to go back and get $xxx from this defendant and $xxx from that defendant. That’ll be enough for you, right?” I think it actually threw him for a loop when I responded, “No. That’s not what I want to do.” We then had a hurried discussion during which it became apparent the mediator was getting nervous. When he left the room without a smile to convey my response to the others, he said, “We need to wrap this up soon. I’ve got another mediation that’s supposed to start in an hour across town.”
We settled, but not because of time pressure (at least not from my room). The terms were literally scribbled on a piece of notebook paper and the mediator was gone before the ink was dry, apparently hoofing it to his afternoon mediation. Since everybody agreed to settle, everybody should have been happy, right? Well, I wasn’t.
Some mediations are easy (relatively speaking). Some can be wrapped up quickly and inexpensively. But some can’t. It’s been my experience that most don’t even get serious until afternoon. Many look hopeless at 3:00 and ultimately settle after 5:00. It’s just the nature of the beast, and there is no way to know in advance how quickly – or how slowly – the negotiations are going to unfold. I’ve visited with many mediators across the country who regularly schedule two or three mediations on a single day. I’m sure most are terrific mediators who get great results, but this scheduling practice inevitably leads to rushing, which leads to undue pressure, which may lead to concluding before the parties can reach agreeable terms or, worse yet, settling on terms that the parties regret after the fact. It’s a bad practice; one I don’t plan on ever adopting.
Opening sessions are critical, in my opinion. When the mediator dispenses with an opening session, he bypasses the opportunity to lay the ground rules for the parties. He misses the chance to establish a comfort level with the parties at the outset. He fails in his obligation to answer any questions the parties have about the process and to allow them to make any opening statements they may wish to make. Perhaps most importantly, he leaves open the possibility that one or more parties feel left in the dark about things, beginning the day on a bad note and maybe even fostering distrust in a party.
My remarks during the joint opening session always include the following: We are not going to waste time today. We will focus on what can be done to settle this case and we will keep the focus there. Conversely, if we are making progress, we will use as much time as we need to see if you can reach an agreement. If we reach an impasse and everyone agrees there is no point in continuing, and if we’ve exhausted all reasonable possibilities, we will conclude the mediation and go home. But if there is still reason for optimism, we will keep working and we won’t let the clock dictate the result.
As I drove through the hills on my way home, I wondered how many times this particular mediator had seen a mediation derailed because he had to leave so he wouldn’t be late for the next one. I was thankful we had been able to settle our claim on satisfactory terms, but I realized we had been very close to missing the opportunity to do so for no reason other than the time of day.
So I did learn something after all. I learned that I like my way of doing things better than his. You see, mediation does not have to move at the pace of a three-legged turtle, but it also shouldn’t be conducted by the Roadrunner. If you fall into that Acme trap, you may wind up getting burned.