By: William Cea
Published November 2016
As anyone who has participated in mediation knows, it usually takes much longer than the parties anticipate. Parties generally come prepared to “hit the ground running” and negotiate a settlement along whatever preconceived terms they have in mind. Often times, however, the bulk of the mediation session is taken up by an exchange of information, drilling into factual and legal disputes, and exploring opportunities for resolution. In my experience, all of this typically takes place prior to a discussion about actual settlement terms.
As discussed in a prior article, preparation for mediation is essential. No matter how well prepared you are, however, that does not necessarily translate into how long the mediation will take. The reality is that if the lines of communication, facts and legal issues were so straight forward, the parties wouldn’t be in the dispute to begin with. So the negotiation that seemingly should take an hour, often lasts all day and sometimes into the evening. In addition to preparing a mediation summary and making sure that the case is actually ready for mediation, clients should be prepared for what they may experience at mediation itself.
First, there is the joint session, which is vitally important for understanding each participant’s position, as well as identification of impediments to settlement. For example, your opposing counsel’s presentation will likely raise the impediments to settlement, as well as factual and legal disputes. Identifying these impediments is critical in order that you can get to the actual negotiation.
Next, the caucus sessions usually focus on the various areas of disagreement that need to be addressed prior to meaningful negotiation of terms. While a mediator cannot provide legal advice or render any decisions, the role of the mediator is to make best use of the confidential and privileged nature of the discussions to break down barriers and assist the parties in better understanding each other’s position. In a multi-party case with claims, counterclaims and claims for indemnity, for example, discussion of impediments to settlement could last for hours. While this may seem laborious, this is an outstanding opportunity to streamline fact finding and exchange information that could take months and great expense to accomplish through formal discovery.
Your case may involve experts. The parties should consider whether it makes sense for the experts to attend, and whether a caucus to bring the experts would facilitate a resolution. For example, in a construction dispute, the experts are usually critical. If parties’ experts can meaningfully discuss and agree on a scope of repair, that has an obvious benefit of clearing the way to negotiate the cost of repair. This may seem elementary to some, but this is the type of meaningful discussion that can take place through mediation without anyone feeling that they are compromising their position at trial. Whether it is getting experts in a room together, or communications handled through the mediator, it is the exchange of information and the exploration of the underlying differences in positions that gives a mediator the opportunity to assess the areas of agreement and disagreement, and possibilities for settlement.
Alternatively, it may simply be that certain documents have not been exchanged and time is needed for opposing parties to review them during the course of mediation. While there is a natural inclination to resist aiding the other side and avoid divulging litigation strategy, if the desired result is a settlement, then why not put the cards on the table in a privileged setting? It may be that the response you receive is something you or your client had not considered.
Additionally, parties need to factor in ample time to actually prepare the settlement agreement. How many times do you get to the point of an agreement in principal, just to have to spend another hour or more agreeing on the written document? While you may be able to mitigate some of this time by bringing a form or boiler plate document with you, often times issues such as the scope of a release, who is to be included in the release, time for performance, enforcement, and non-monetary terms take time to flesh out on paper. The parties oftentimes seem surprised or exhausted by the time the agreement is being reduced to writing. If parties are not prepared to work on the document itself, it could lead to frustration or a premature end to the process without a signed agreement.
Thus, in order to avoid the frustration and fatigue that could undermine your mediation session, it is important to consider how long the session may take. Fully explaining the mediation process to your clients in advance will help them prepare and avoid your being asked “how come this is taking so long?”