Thursday, September 18, 2014

The Angel of Optimism: What to do (beyond Prayer) after a Mediation Fails

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?