As I was going back through my earlier mediation blogs and realized that it’s been quite a while since my last one, I thought to myself, “It’s about time” that I write another. And of course, the next thought was, what shall I write about, that I haven’t already covered in my earlier blogs? As I found myself struggling to get creative, I kept coming back to my original thought that it’s “about time” that I come up with something new. And then it struck me – “about time” is exactly what I should be writing about, since, as they say, timing is everything – and that’s particularly true with mediation. Time plays an important role in the mediation process, and the more consideration that’s given to it by the mediator and participants, the greater the potential for resolution. Here are just some of the ways in which the concept of time is important in mediation:
- Timing of the mediation date. The first timing consideration is, at what point in the life of the dispute should the mediation be scheduled? Of course, parties can mediate at any time they choose – before a lawsuit has been filed, while the suit is pending and the parties are engaged in discovery, during trial, and even after trial during the appeal process. The balance to be struck, if possible, is between having enough information for the parties to have a confidence level in the bases for their settlement positions, vs. having spent so much time and money in the litigation process that the parties become entrenched in their positions and, in those disputes in which attorney’s fees are recoverable, the battle becomes more about recovering the fees that have been incurred than about the underlying claim. That doesn’t mean that mediations that are scheduled early in the life of a dispute can’t be successful – they can be, and to increase that possibility, when I’m first asked to assist I always ask both sides whether they have enough information for the parties to make informed business decisions as to settlement, and where additional information is needed I can assist both sides in getting it, usually without the need for formal discovery.
- Timing during the mediation. The next timing consideration relates to the mediation itself, and it takes several forms. The first is, how much time should the participants set aside for the mediation itself? When asked, I always tell both sides that there is no way to predict how much time might be required for resolution, that they should set aside a full day, and that they should let me know if they have unavoidable commitments that would prevent them from going beyond normal business hours in the event that that should be necessary. I also tell them that I always keep the process moving forward as efficiently as possible, while also being mindful of not pushing either side toward settlement decisions before they are ready, which can be counterproductive (more on this below).
- Half-day sessions. Along the same lines, when participants tell me that all they need is a half-day session (sometimes saying that if the matter isn’t settled in a half day it never will be), I always tell them I’m happy to oblige – but my policy is to reserve (and take a deposit for) a full day, and to get the commitment from both sides to reserve a full day, and to go beyond a half-day if at that point both sides agree that we’re making reasonable progress toward resolution. That way, we reduce the risk that an opportunity for resolution may be lost due to an artificial deadline.
- Breaks. Depending on the length of the mediation session, it’s also important to take occasional breaks to avoid burn-out, and to give the parties and counsel at least a brief opportunity to regroup “offline.” In that regard, mediators are only human and it’s easy to lose track of how long it’s been since the last break, so I always tell the participants not to be afraid to let me know if they need a few minutes of “down” time to collect their thoughts, grab a cup of coffee, or just relax.
- Timing of starting “the dance.” Next, and as alluded to above, when to start the actual exchange of demands and offers (sometimes referred to as “the dance,” with no disrespect to the process intended) can be key to a successful outcome. Pushing parties to make difficult settlement decisions too soon can derail a negotiation before it even gets started. This is especially true as to parties who, unlike insurance company representatives who mediate regularly, are unfamiliar with the process and are understandably anxious about what is going to happen. It’s important for them to get comfortable with the process, and with me, before they will be ready to make reasoned settlement decisions. (That’s one of the reasons that I always spend some time separately with each side at the beginning of the mediation, before bringing the parties together into joint session if there is to be one.) And when pushed by one side to get the settlement ball rolling before I believe the other side is prepared to meaningfully engage, I usually respond by asking that side to trust my judgment that it’s in their interests to let the process play out a bit more before starting “the dance.”
- Time zones of remote participants. Finally, with the advent of Zoom mediations and remote participants, the issue of time zone differences must now be considered more than ever before. (In one of my recent Zoom mediations the parties were in Paris and Boston, and their counsel and I were all in the Bay Area. In another, one of the parties was in Viet Nam.) Obviously, the more remote the participant, the greater the time zone difference. Sometimes the remote participant has already adjusted her work schedule to a local time zone (e.g., where the participant works remotely for a local company), in which case this is a non-issue. The key to making this work is to deal with it well in advance, and for all involved to be as flexible as possible, knowing that the parties have the common goal of making the process work so that they can resolve the dispute and go on with their lives. Because the entire process is of course voluntary, the starting time for the mediation can be just one more issue to be mediated, and when agreement is reached with everyone adjusting their normal schedules somewhat in order to accommodate remote time zones, that can bode well for agreement to be reached on more substantive issues during the mediation itself.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when the parties are comfortable in doing so. I look forward to working with you again.
Best regards and stay well,
Phil Diamond