It’s Not Over Until…the First Juror’s Sworn? (Part 2)

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In my previous article, I discussed whether a mediation, which did not result in a settlement after the initial sessions, has ended. In this continuation, I will explore what can happen after the parties have arrived at an impasse;  and when the mediation really ends.

As the “reality testing” engaged in by the mediator with the parties—the hypothetical “what if’s” that a mediator will ask a party to consider early on in a mediation—comes to life with the evolution of the lawsuit as described in Part 1 of this article, the parties will have a new reality to consider. Hopefully, the parties will have, in the initial mediation sessions, been encouraged to identify their own needs and interests and to understand those of their adversary. The changing circumstances might present the parties with new ideas as to how to best achieve their goals and and to reasonably satisfy those of the other side. Of course, a party may also have discovered that some of its goals are unachievable given what has occurred since the impasses, which may cause it to modify their goals. When that happens, the parties would often benefit from another go at mediation.

The persistent mediator will periodically check back in with the attorneys to learn what has occurred and to see if the new realities, or even just the passage of time, might result in the parties being able to pick up where they left off and try to overcome the seemingly insurmountable divide. And if so, and if the mediator has been successful during the earlier sessions in establishing a rapport with, and gaining the confidence of, the parties, they may be willing to pick up where they left off and finally resolve the dispute.  

In that case, the mediation did not end when an impasse was declared; it ended after the next round of negotiations—which, hopefully,  resulted in settlement.

How do we determine if a mediation was successful? Certainly, when the parties resolve the issues, whether during the first round of negotiations or, eventually, after an impasse was declared and thereafter overcome, the mediation was successful.

However, is resolving a dispute during the mediation the only measure of success? What happens if the parties themselves, with the help of their attorneys, and without further involvement of the mediator, continue negotiations at some later time, building on points of agreement and on the prior negotiations and discussions with the mediator, settle?  

And what if the parties resolved some, but not all of the issues in dispute at the mediation, and narrowed the issues for trial, or narrowed them sufficiently so that a settlement could be reached prior to trial without further involvement of the mediator? It may be hard from a statistical perspective to measure that, but the parties and their attorneys may very well admit that the mediation contributed to the eventual resolution of the case.

So for a mediator, the best tools in one’s toolbox are patience and persistence; and, of course, good listening skills, which are helpful always, and particularly in determining when an appropriate time might be to pick up with a previously “concluded” mediation.

Contact me with questions or comments.

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