Settlement Perspectives

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2 PerspectivesFebruary 16, 2010

In Mediation, Who Gets To Say “We’re Done”?

Dead End 465

It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual:  This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.

Since those early days I haven’t given much thought to why the mediator — rather than the parties — gets to end the session. But in a recent mediation headed for impasse the lawyer on the other side almost ended the day with “I guess there’s no reason to keep talking, is there?” in a late afternoon joint session, and I understood.

Who Will Be the First to Send a Message?

Mediation is admittedly a bit awkward, if not unnatural. For its success the process requires parties and their paid advocates to stop fighting long enough to work toward a compromise acceptable to all. A series of concessions, conditioned on reaching a settlement, ends in a deal or a return to conflict.

If settlement can’t be reached, most parties and advocates immediately look for a way to turn up the heat on the other side — to send a message reinforcing the consequences of not settling. While I have said before that a “failed” mediation is a perfect time to settle halfway, the traditional response is to remind everyone that conflict has resumed as quickly and convincingly as possible.

Don’t Jump the Gun

In my recent mediation, our second meeting was no more successful than the first. By late afternoon we were still stuck.  Everyone was ready to head for the airport again, but I thought there might be one last big move left on each side. Our mediator gathered a few of us together to see if we could reach common ground.

A few minutes into our afternoon joint session — a risky move in itself — one of the lawyers saw impasse coming and understandably began the notebook closedown process, highlighting his return to advocacy with something like: “It looks like we just see the case differently,” followed by “[a]pparently we don’t have much more to talk about.” Fortunately our mediator quickly intervened, surprising us all with a reminder that he, rather than the parties, would tell us when it’s over.

Once our mediator refocused us on why the case should settle and how we could get there, we began to make progress that afternoon — enough progress that the mediator was able to formulate a mediator’s proposal that got the deal done shortly thereafter.

Lesson Learned

The lawyer on the other side of my case was, and is, a good lawyer who did what most of us would have done. He began to remind us that the concessions would end as the conflict resumed. But the settlement achieved serves as a reminder of what’s been in the mediation manual for over 20 years: Don’t leave until the mediator tells you today’s session is over.

You’ll be glad you didn’t.

Categories: Mediation,Negotiation,Tactics

2 Perspectives:

Alan Dabdoub — Tuesday, February 16, 2010 11:38 pm

John, this is a great post. I think you hit on a good theme here that in mediation, perception to the parties as to what it will take to settle the case is often not reality. But that is the hardest thing for counsel and the parties to overcome. Not allowing that perception to drive the parties and counsel’s behavior is very unnatural because what we perceive instintively drives our behavior. I think one thing that can’t be overrstated is managing the client’s expectations before walking into the mediation(on more than what they will get or what they will pay). Often times, what seems like too big a monetary gap at mid-day or end of day drives behavior such as, “I have a plane to catch and we’re not going to get it done.”. If the parties are informed by their counsel beforehand that the inevitable and seemingly insurmountable gap shouldn’t discourage them, that it is to be expected and that they should hang in there, the mediator after a long day will be working in a much more fluid environment and the chance of getting a deal done increases big time.

John DeGrooteWednesday, February 17, 2010 6:50 am

Alan–

Thanks for your thoughts on this. Given your experience as a client and as an advocate in mediation, yours is a valuable perspective.

As you know, I believe it’s critical to manage expectations before mediation day for more reasons than one. With realistic expectations about their respective positions and the process — including how and when it might end — our clients can increase their chances of success on mediation day.

Thanks again for your insights, Alan–

John DeGroote

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Settlement Perspectives
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of John DeGroote.

I created this site to help clients and their counsel navigate the challenges that inevitably result from disputes, settlement efforts, impasse, and negotiation in general. The perspectives I bring are based on my experience, summarized in this abbreviated bio. If you have any questions or thoughts about this site, or an issue you’d like to see addressed, please email me at:

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