Mediations happen at all different times in the life of the dispute.
This month, I've mediated two matters that had not yet been filed as
lawsuits, one where no discovery had yet been conducted, and another on
the eve of trial after a previous mediation failed. All of the
disputants came with the hope and expectation that their conflict would
get settled that day. Unfortunately, it doesn't always work out that
way. But after the formal mediation ends, the hard work begins when
phone call and email and private meetings and review of documents takes
place in a painfully slower process than the single day in which
everyone agrees to set aside their other business and concentrate on
just one matter. Parties and sometimes their lawyers are tempted to
give up and proceed to spend the time, money and risk shutting down all
negotiation in the name of thorough litigation--as though they were
never going to revisit the wisdom of a settlement. In those cases, I
urge the litigants to tap gently on the shoulder of their "Angel of
Optimism"/Mediator and allow me to keep them on track and cool as they
navigate the tumultuous waters and get to the other side. In other
cases, I will admit that I end up serving as that pesky little dog who
just won't let go of your pant leg. Somehow or other, the parties are
ever grateful that somebody sees it as their job to keep working for a
resolution--even while they engage lawyers to prepare for the potential
that this is the 1 case they will take to trial this year or next.
Which do you prefer: the angel of optimism or a pesky little dog ever
nagging you to tune back in to the conflict your weren't able to resolve
last week? What other ways do you "stay with the conflict" when it
fails to settle at the mediation session?
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