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Mediation Strategy: Sufficient Time Is Required For Success

November 10, 2011

The most common cause of failure of resolution at any mediation is running out of time during your formal conference.   If your intent for your mediation is  just to get “something started” or  for discovery, both legitimate considerations, then you may totally disregard this article.  However, if, as most use mediation, your intent is to reach a final, enforceable resolution, I suggest you read on.

Your most important mediation strategy is planning and reserving enough time to allow all  participants to complete their mediation  and thereafter, planning  your time management of that time reserved to YOU for completion of your mediation.  Notice that you must allow for the time others think necessary for their purposes, not simply yours.

Just because you are quite certain where you and your clients intend to go, doesn’t mean the same for the other parties and their counsel.  Remember, this is a voluntary consensual process that requires everyone to agree to the same terms!  It simply takes time to do that.

And, it begins with simply reserving and allowing for enough time for your mediation.

There is a commonly expressed belief  that whatever the time reserved for any mediation, your mediation can always be successfully concluded within that scheduled time.  Often, a scheduling party will even assume that scheduling too much time will simply guarantee that the “extra” time will be consumed. Accordingly, why not schedule the shortest minimum time the mediator will allow?  Nothing could be further from the truth.

Think of what you are asking.  You are asking your mediator to accomplish between conflicting parties in a few hours which you and the other parties have been totally unable to do in months or even years.  In fact, in too many such matters in recent times, not a single effort at any negotiation has even been yet attempted!

Think, also, of your own personal experience.  How many of your mediations have achieved full resolution, including the all-important execution of your mediation settlement agreement, in less than the time originally allocated to the mediation?  Now, compare that number to how many required more than the reserved time?  And, be honest, how many that didn’t get completed likely could have been if only an important participant didn’t have to make a plane or another conflicting appointment?

There are other reasons why mediations are notoriously scheduled for far too little time.

Lawyers are notorious for under-estimating their time requirements for anything.  Ask any Judge or Judicial assistant.

In legal matters, however, few matters go as they are planned.  And particularly when there are numerous persons with equal control over consumption of the limited time alloted.

In a perfect world in mediation, all of the required parties arrive early, or at least on time, to their mediation conference, conduct no last-minute “required” conferences or telephone calls, use only minutes they estimated necessary for their opening because it is “already known to the opposition” and move immediately into meaningful negotiation without any attempt to convince the mediator of their exclusive view of either fact or law.  In real life, however, none of these foreseeable time factors are likely and the likelihood of  their perfect combination is as rare as a flying pig!

Many times the time allocated and reserved by the scheduling attorney is selected solely due  to what his/her scheduling will allow.  Often this same scheduling attorney has not even conferred with all of the other counsel to determine what their needs might be.  Worse, the time requested ends up being the maximum “permitted” by the one participant who feels the least will be achieved at any mediation!  Do you really want your mediation time and opportunity restricted by someone who has no interest for it to succeed?

Sometimes timing is solely to conform to a particular mediator’s schedule.  And, because many  of the “volume”  mediators adhere rather rigidly to “four-hour” blocks to be able to schedule at least two short mediations each day, many attorneys will then opt for the shortest amount of minimum required to fit within the schedule of “their” mediator.  Then, every minute that is lost because a participant simply doesn’t/can’t make a “too-early” start is also further lost to everyone else in this already too-little time frame.

And, sometimes, the time requested is simply a function of trying to reduce the cost of mediation by reducing the amount of time to be allowed.  This is probably the most short-sighted of all reasons.  Remember the old saying, “penny wise and pound foolish”.  Failing at mediation or having to reschedule an entire mediation due solely to the lack of sufficient time to complete your hard-won position gained  just before a required adjournment is the most inefficient cost of all.  Invariably, any subsequent mediation will require re-plowing  much of the same ground merely getting to where you left off.  Or worse, starting totally over.

When you consider the total cost of mediation compared to the cost of almost every other legal process for your client (most depositions costs more!), and then compare what a successful mediation can mean to your client, why would you ever want to “run cheap” for this critical procedure?

But there are also hidden “dangers”  for failing to allocate enough time to any mediation.

What are you (or the other party holding out for a “short” mediation) already “saying” when you schedule a “short” mediation?  Worse, what do the other participants think it means?

One common side effect of any too-short mediation is that important participants who normally would attend a mediation planned to be lengthy enough to justify the expense of their attendance, simply do not perceive any “mini” meditation as worth their time.  Or, even  parties may not feel their attendance is worth their cost to attend where so little emphasis was placed on the time alloted.  And, if the “important participants” are not in actual attendance, you have already begun your journey to failure.  See, my earlier blog,Mediation Tip:  Successful Mediation Requires All Participants Attend“, March 212, 2011.

And what about expectations caused by short-cutting a mediation?   Although excessive expectations can doom a mediation before it is begun, so can limited expectations.   Do participants approach a short-time or limited mediation with a short-time effort or a limited attitude?  Is the matter so easy that it doesn’t need a key participant’ effort to attend?  Or,  resolution so unlikely that it will be a waste of time for that same participant?

And, just because your mediator can or is willing to run overtime to reach a resolution, you can bet that one of the other participants in a limited-time mediation, if not more, have a plane to catch, a baby sitter to take home, another client to meet or some other pre-scheduled matter that brings the mediation to a halt.  Or, worse, merely the pressure of any of those conflicts take away the full attention of that participant that is so necessary to resolution.  An “important participant” who believes he/she is missing an important event, will not likely treat you kindly.

And, realistically, how firm is your reserved time?  How many mediations have you attended that were firmly scheduled for a certain minimum number of hours only to find that one or more important participants had pre-scheduled appointments or transportation issues that, with travel time also considered, totally destroyed even your ” firmly agreed” mediation time frame?  And, what about mediations scheduled on Fridays?  At what point do you lose your participants, mentally?  Losing any time from a minimal four-hour block is totally different from losing a similar period from an all-day matter.

But, mediation time management also includes proper, pre-scheduled  time allocation and use during mediation.

Time management in mediation begins with simply attending timely!

And, it includes getting your client prepared before mediation and getting them to their mediation on time, as well.  What does it say to your opposition about your preparedness for this mediation when you “must” speak to your client (or anyone) while the other participants wait, even though everyone else was on time and prepared?

Time management also includes similar time considerations in each separate stage of negotiation.  It begins with a well-structured and directed opening statement.  (I also have several posted articles about this subject!)  It includes adequate caucus time to allow each party their processes to reach common ground.  It includes staying timely with your negotiation pace as well.  And, it must include allowing for sufficient time to draw up the all-important mediated settlement agreement.  (You should always be thinking positively!)

I wrote an earlier time-use, related blog on this subject, “Negotiation Tip:  Don’t Run Out Of Time“,  January 25, 2011, with suggestions upon your required pre-planning for the presentation of your mediation, and particularly your negotiation.  To keep this article within reasonable limits, I will defer to those earlier suggestions for your consideration again.

Occasionally, but very rarely, mediations do not require the time reserved by the parties.   A competing  question presented therefore is whether it is worth the risk of mediation failure by under-scheduling your time for mediation to gain the savings of an hour or two of a mediators time.  More specifically, your pro-rata proportion of that fee.

Running out of time never occurs when neither side cares.  It is always at the most crucial point in your negotiations.  It is always just when you were about to turn that all-important corner on a critical point.  It is always when, with just a moment more, the deal could have been made.

And, particularly in the context of “complex claims”, according to John C. Trimble, a defense attorney and mediator from Indiana, allocating enough time to mediation must be given extra special consideration.   In his article, “Mediation of Catastrophic and Complex Claims, most recently published in Florida Mediation Institute, Volume VII, right after choosing your mediator carefully (his personal first requirement), Mr. Trimble points out the critical need for adequate time.  I highly recommend your review of this interesting article if you frequently are involved in complex claims.

The processes of mediation and the processes that must occur with each party during negotiation, like fine cooking, take time.  Even sophisticated participants need adequate time to make informed decisions and to follow strategic plans for success.  Lay persons require even more.  Rushed mediations, like undercooked food, rarely are as well received.

Although I can appreciate the desire of the parties to save money, when compared to the cost of a mediation failure for a lack of allocated time, what is the cost of any one party’s share of one mediator for an hour or so more?  Likely the airfare of one important participant to attend the mediation, alone, exceeds the usual mediator’s total billing!

The next time you plan and reserve sufficient time for your mediation, give some very close thought to what you lose with too little time allocated to this all-important process versus what you gain by saving only your separate portion of probably the least expensive professional fee in the room for only those few more moments it will take for a total resoultion.  The taxi taking the key participant back to the airport probably costs more !

One Comment leave one →
  1. November 11, 2011 11:35 am

    Excellent content. It is often easy to think a mediation is complete when one area of conflict is agreed upon. It is important to take the time to be sure you have explored the conflict and resolved the “hidden” issues to ensure your agreement is complete and both parties have satisfied their needs both spoken and unspoken. .

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