THE INTERSECTION OF TIME AND MEDIATION
BY GREGG BERTRAM
Time and mediation have always been conjoined. The natural relationship between mediation and time is one that deserves acute attention by parties and their attorneys but, instead, is often ignored. Mediators too must be sensitive to time in order to serve the mediation process most effectively.
For parties and their attorneys the mere contemplation of mediation must trigger time considerations, among them, when to mediate? Mediation early in a dispute presents opportunity for financial and emotional cost savings as well as the opportunity to preserve or even enhance party relationships. From experience, early mediation does not occur nearly as often as it should, for example, in employment, business or family law disputes. Instead, especially in high asset divorce mediation it is common for mediation to occur on the threshold of trial with parties who are financially and emotionally spent.
The design of mediation and time are also inextricably connected. “Mediation design” is usually only synonymous with mediation length. Four hours is sufficient for many clear liability two-party mediations with represented parties. However, complex legal and factual disputes, many involving multiple parties, necessarily require at least a full day if settlement is a common goal. In cases involving one or more pro se parties a half day is also rarely sufficient. Mediators are seldom included in the mediation design phase – but they should be consulted before scheduling to improve the chances of a satisfactory outcome for all involved.
In addition to mediation length, issues of location, personal attendance or remote video or telephone participation also naturally involve time. Is a particular location deemed optimal for the mediation? For example, some construction or real property boundary disputes benefit from a site visit by the mediator. This, of course, takes time. Disputes involving insurance always benefit from the personal attendance of insurance risk management personnel but such attendance is increasingly rare even in many high dollar cases. Chasing decision makers on the day of mediation eats away at the allotted time.
“The two most powerful warriors are patience and time.”
~Leo Tolstoy, War and Peace
When in mediation, mediators must be efficient time managers. Parties may insist on being sufficiently heard by the mediator before negotiations can begin. This obviously requires time. Yet, the mediator cannot afford to allow other parties to languish unattended, especially if those parties are receiving negotiating instructions from other individuals who are not physically present. The more cumbersome the negotiating chain of command, the more time that is necessary for progress. Pre-mediation conferences by counsel and parties with the mediator are useful, even necessary events in order to maximize time spent at the mediation session.
Finally, if settlement appears possible, enough time must be available for parties and counsel to carefully formalize settlement terms. In addition to payment issues, such issues as the scope of confidentiality, non-disparagement or non-competition can each take substantial amounts of time to work through. Exhausted attorneys and their clients can make mistakes at the end of a very long day. This is of particular concern when elderly individuals are involved. Worse, if exhausted parties and lawyers having reached agreement in principal, leave mediation without a written agreement, they leave without a legally binding settlement. Thereafter, the expenditure of more time and money becomes unavoidable.
Additional mediator time is essential if settlement does not occur at the initial mediation session. Post session mediator follow up can involve anywhere from another day or two to another year or two. Those mediators dedicated to effective follow up must carefully schedule their time to accommodate these efforts. Post session mediator follow up has become increasingly necessary in sophisticated markets like Seattle where participants sometimes intend to use initial mediation only as a device to wear down an opponent.
Finally, the common belief that meaningful negotiations occur only during the final hour of mediation is a myth. Mediation reality is very different. The mediator must earn the trust of the parties and attorneys from the mediation’s inception. Critical mediation time is also needed for parties to understand the factual and legal reasons for their opponent’s position. Time is also required to analyze various settlement options and the consequences of each as well as the future impact of leaving mediation without a settlement. Obviously, the final mediation hour is seldom sufficient to accomplish the foregoing.
Mediation remains inexpensive relative to other customary litigation events and/or costs, including trial. Only when mediation does not result in settlement does it merge with the other stages of pre -trial expenditure of time and money.
Gregg Bertram is president of Pacific ADR Consulting, a Seattle-based panel of mediators and arbitrators serving the Pacific Northwest.