Returning to Mediation
Would you return to mediation if the first session does not yield a settlement then and there? This is a puzzle for many.
There are many reasons why the first session may not end in agreement:
My colleague and friend, Jan Frankel Schau, ruminates about the Zone of No Possible Agreement and suggests that people might walk out of the mediation session if the other side’s posturing causes its demands or offers to be stubbornly and unyieldingly outside the Zone of Possible Agreement.
Thus, Schau recommends, and I don’t disagree, that if the offers or demands are outrageously too low or too high and if there is no likely movement or flexibility, there is no reason to stay and waste time on a futile negotiation.
There, it is an appropriate strategy to end the mediation session with a walk out. See, http://schaumediation.com/secure/wp-content/uploads/2014/04/NOPA.pdf
There are other reasons as well, about which I have already written, where the first session of mediation may need to stop before resolution: e.g., if there is a looming litigation event that should occur first (demurrer, summary judgment motion, deposition, pending written interrogatories or document requests) and if the mediation was scheduled beforehand and perhaps prematurely due to a judge’s request or a contract provision. See, https://karpmediation.wordpress.com/2011/06/22/starts-stops-and-ripeness/ .
There are other, more personal reasons as well for mediation sessions to end without resolution, because things happen in our own lives:
For instance, while conducting a mediation one day, I received a call from a hospice nurse caring for my father A”H who said, “David, you need to come see your Dad, now.”
Sometimes, a child of one of the litigants gets sick and suddenly needs a ride home from school.
Or a litigant herself falls ill during the course of mediation.
These things do happen from time to time.
In most cases, the frustration is palpable among the participants, of course, as the mediation session is interrupted and ends prematurely.
But is the mediation over?
Wisely, people can and do reschedule a second or subsequent session of mediation sometimes. They pick a date and put the new session on calendar while we are all still together.
Ah, but does it stay on calendar?
Not always, and this is the hard part.
I have previously written about the analogy I use, that people are like rubber bands. See, https://karpmediation.wordpress.com/2013/07/11/imagery-in-mediation-the-rubber-bands/ .
Thus, in the same way as when one let’s go of a stretched rubber band, when the tension of the mediation session is released, people sometimes go back to original positions if the mediation session is interrupted or ends without an agreement.
The momentum is broken, they become entrenched once again in their dispute, and that is the risk.
So, it takes enthusiasm, optimism, and a good dose of salesmanship sometimes, to encourage people to resume the negotiation on a different day.
Maybe this comes from the mediator, but more likely it is the litigator, as good counsel for his or her clients, who needs to be the cheerleader for mediation to resume … and for resolution to continue as a possibility.
Sometimes that is a Sisyphean task when the client wants to re-engage in the litigation war.
But if the opportunity arises to remind the client of the possibility of a mediated resolution, the client should be so reminded … if, as Schau suggests, there is “room for flexibility” in the negotiation, and a willingness on both sides to reach a tolerable outcome.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .