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Customizing the Mediation Process

March 25, 2014

Creativity, and deeper thinking about the mediation process itself, led to a customized mediation recently that better fit the needs of the attorneys and their clients.

In most routine mediations, which nearly everyone has experienced whether conducting or participating in the process, all of the participants show up in one place at one time; sometimes a joint session takes place at the beginning, sometimes not; then the participants split up into different conference rooms and the mediator trudges back and forth between them, confers privately with each side, presents offers and counteroffers, and hopefully brings the disputants to an agreement, all in one session in one day.

For a variety of very good reasons, this unimaginative model of mediation was not appropriate for the complex business dispute that was being convened recently.

Why? First, not everyone could meet at the same time.

Second and more importantly, each side needed an extended period of time – to explain its view of the dispute, to educate the mediator, to learn and understand more about the predicament and possible outcomes, to have the emotional catharsis which is always necessary, to discuss alternative approaches, and to get to a frame of mind that could allow for compromise, concession and agreement.

In several mediations prior to the mediation now under discussion, staggered arrival times had suited the needs of the moment: One side would arrive an hour before the other for a private caucus.

This would allow for a deeper (read as “prolonged”) conversation with one side without requiring the other side simply to sit and wait for its turn. (There is enough sitting and waiting during a mediation already.)

This has been a successful strategy particularly where one side has been perceived by the mediator to require a little more time than the other.

But even this strategy was insufficient for the subject mediation.

Intuiting that much more time for each side was necessary, an innovative idea formed:

Why not extend the staggered arrival to different days and schedule independent sessions for each side?

In the mediation under discussion, this worked well. One side met with the mediator in private caucus for several hours on one day. Then the other side met with the mediator in private caucus for several hours the following day.

Although the time spent in these pre-joint session meetings was probably still not enough for each side, it felt right in the moment.

And it yielded a desire to go further and  to schedule the next session.

Not every case warrants this strategy.

However, for the most complex and/or challenging of mediations, this is yet another tool for the mediator’s toolbox.


David I. Karp is a full time mediator of real estate and business disputes in Southern California. His business website is . He apologizes for any ads placed with this blog by; they are not his.


From → Mediation

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