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Starts, Stops and Ripeness

June 22, 2011

Many mediations begin with the goal of getting to resolution that same day, and many do resolve in one session.  Some do not and a second session may be appropriate.

One colleague confided in me that he believes that the first session of mediation is only about “getting to know you.”  Some first sessions involve the attorneys “putting on a dog and pony show” for the other side or their clients (not my phrase – I heard someone admit this).  Some use the first session to get the first demand from the other side.  Some are simply unprepared to go forward and/or to pay for an extended session the first day.

There are also substantive reasons why the mediation may require more than one session.  In some cases, more information needs to be obtained (e.g. a current real estate appraisal in a suit to partition real property) or exchanged (e.g. financial information to assist in the evaluation of a loan modification). In some cases, an event in the litigation itself needs to occur (e.g, an upcoming hearing on a motion for summary judgment or a deposition of a party or witness.)

Consequently, sometimes the timing is not right (or “ripe”) for resolution on that first day.  So that no one has false expectations, the ripeness of the matter for mediation should be explored up front.

On the other hand, some first mediation sessions may need to occur even if not yet ripe.  Certain pre-litigation mediations must occur – even if no one has an interest yet in settling – because of some contractual provision requiring the mediation (e.g certain real estate forms have a pre-mediation clause wherein the parties must seek/consent to mediation to preserve their right to obtain attorneys fees later in a law suit yet to be filed.)  Some mediations are thrust into occurring because of some deadline imposed by a court to have the mediation done by a certain date.

Whatever the reason for the timing of the first session, the goal of the mediator is to help the parties, whether by assisting to settle the dispute, by facilitating their need to have the mediation occur on the date set, or by assisting to have a conversation that may lead to settlement later, whether or not in a subsequent session.

Some first sessions can also complete the process of resolution if, for example, the negotiation is stalled because a litigant is wavering or hesitant to commit to the settlement.  Approaching the issue with the question “is there a better time to get this done?” may yield the discussion that concludes with “no, there is no better time to do this, “waiting for another time will not change anything” or “there is nothing further to do.”

In that instance, it will be the mediator’s goal – of course keeping “self-determination” in mind – to help the litigant to move beyond his or her inertia to settle if that is what he or she is willing to do.

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  1. Returning to Mediation | The Blog of David I. Karp

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