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Following Up and the Importance of Being Earnestly Persistent

October 11, 2013

Imagine the following fictional account:

Eight or nine hours into the mediation, the parties, counsel, and I as the mediator, are still at it.

I can see that the parties are flagging.  They are spent – emotionally drained and physically worn out.

They are not young people and they have put into the process every ounce of strength, fortitude and intensity they could (as have I and the attorneys, needless to say).

The parties have gotten as far as they can go, yet the dispute is not yet settled.

Of course the attorneys and I want to keep going until we reach agreement.

The parties want to call it a day.  They must call it a day.

They are weary and worn out.

This is not like another recent mediation which lasted 14 hours and which ended in a signed settlement agreement, ultimately, although everyone was equally exhausted there as here.

Here the parties simply cannot go any further.

No cajoling, convincing or persuading will keep them at the table any longer.

And here is the salient fact:

It is probably not wise to keep them there any longer without doing harm to their health or to the prospect of resolution.

Yet it is clearly not the end of the negotiation.

Fine attorneys, highly motivated to resolve the matter, huddle with me.  We figure out what to do.

I return to each of the separate conference rooms (it was too emotional a day for everyone to join in one room for this).

I offer to follow up.  Each attorney nods in approval.  I extract promises from the parties to keep an open mind.  I give some “homework” to each side, tasks they can perform in aid of coming closer together.

The attorneys tell me they can still get along and will continue with the process so long as there is movement on both sides.

I think they will do this.

I remind them of my persistence and perseverance.  They know it.  I reconfirm that I can call each of them to follow up.

Yes, they say.  Please do.

And I do.

I am on the phone in the following weeks.  I am trading emails with counsel; some of them are joint emails, some private ones.

I offer to reschedule, but it does not appear necessary.  The attorneys continue to do their work, counseling their clients privately and negotiating for common ground.

Lo and behold, the settlement starts coming together.  I am checking in with the attorneys and they are checking in with me.

The money gap between offers and counteroffers grows smaller and everyone sees light at the end of the tunnel.

One final piece of the puzzle is put in place and the case settles.

It has been three weeks since that first all-day mediation session.

I am thanked by both sides for continuing to stay in contact, for keeping in touch, for following up, for my earnest effort and for my persistence.

And I say you’re welcome.

It is part of the job and it is my pleasure to do so.


David I. Karp is a full time mediator of real estate and business disputes primarily.  His website is at .  He apologizes for any ads attached to this post by; they are not his.


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