North Carolina Lawyers Weekly
Ask any mediator and they’ll tell you that being the third wheel in a party of (at least) two is not always easy. It’s their job to get the party started and keep the party going, even when the ones they showed up with might be tired of dancing.
On occasion, that means dancing until they almost drop.
“Mediation is not such that you can say, ‘I’m going to block this time or this time,” said Asa Bell, a certified mediator in Raleigh. “Some settle in three to four hours, others extend to 15, 16 hours.”
Saving parties “money, blood, time, and angst” is no small feat, even for an experienced litigator, said Greenville, South Carolina attorney Tom Traxler, who splits his practice at Carter, Smith, Merriam, Rogers & Traxler evenly between mediation and litigation. Traxler ranks litigation the more stressful of the two, saying that he has never woken up at 2 a.m. worried about a mediation.
Then again, there are times when 2 a.m. rolls around and he hasn’t gone to bed yet.
“Sometimes, mediations break down or maybe they settle before lunch,” Traxler said. “Sometimes they go into the night. When I leave the house in the morning, I tell my wife, ‘I have a mediation today and I will see you when I see you.’”
“We push through, however, we have to because momentum can be lost if we adjourn. If parties can’t talk, they can’t begin to settle. Sometimes things take time to ripen.”
Dancing longer, stronger
Part of pushing through a marathon mediation is sacrificing one’s own daily rhythm—sunlight, exercise, food—for the greater good. Making progress toward a settlement feels great, but it doesn’t fill an empty stomach.
“When we hit the witching hour and people are tired and hungry, things can go south in a hurry,” Traxler said. “One value of a mediator is to sense when people are getting sour and to figure out how to keep momentum going.”
In the new climate of online mediations, some of these stressors can be mitigated. While the jury is split regarding video conferencing, even traditionalists acknowledge that platforms such as Zoom and Webex allow them to better serve their clients in situations where proximity might do more harm than good.
“When extended mediations are virtual, parties are often in their own homes or offices so they are usually more comfortable,” Bell said.
Traxler said that he prefers being in the same room, rather than a breakout room, for mediations but that as they wear on, a familiar setting can help keep parties from wearing out.
“With video conferencing, people can get something to eat and move around more and be more relaxed than when they are locked in a conference room all day,” Traxler said.
That means that, for good or ill, online mediations have the potential to keep parties at the table after traditional mediations might have broken up, as there’s less pressure to call it a night and go home if everyone is already at their homes. So how, then, should attorneys make the best use of this time to break impasses—ideally without going into the wee hours? Mediators had consistent recommendations for litigants.
It begins with preparation, which means being familiar with the facts and documents, as well as having a plan for negotiating toward the settlement terms you’re shooting for. Too much reliance on improvisation increases the likelihood of a long night.
“On mediation day you probably will have to be flexible, but it’s a lot easier to adjust an existing plan than it is to make the whole thing up as you go,” said Steve Dunn, a certified mediator with Miles Mediation in Charlotte.
Lawyers should also avoid threats or chest pounding and shoot straight with both their clients and the mediator, informing the former about the process and setting realistic expectations and not posing or posturing too much for the latter. Whenever possible, refrain from drawing a line in the sand unless it absolutely is the bottom line.
“I have seen too many lawyers lose a chance to settle because they spent too much time asserting unsellable, untenable positions,” Traxler said.
Bell said that he once believed that one should say what they mean and mean what they say, a stance that he has refashioned in his role as a dance partner constantly cutting in.
“When I began practicing, I realized that negotiations are a dance,” Bell said. “The process of mediation … helps walk the parties through this dance.”
It can be a slow dance, though
Suppositional overtime notwithstanding, facilitating another’s dispute and helping to fashion a resolution through acute legal prowess and sheer tenacity can have its upside. While part of an adversarial system, many say that mediating is more collaborative and allows for more creative legal remedies than those found in a courtroom.
And rather than fighting for a specific cause or advocating for a specific outcome, mediators are looking to get all parties on the same sheet of music—even if they aren’t singing the same tune.
“It’s very uplifting to help people solve a problem and see the sigh of relief that it is finally over,” Traxler said.
Of course, exactly when the after-party can begin is anyone’s guess.
As a former plaintiffs’ attorney whose dance card now stays full with alternative dispute resolution, Bell said that one way that he helps choreograph a smooth, optimized conciliation is to request a pre-mediation statement from all parties to help identify and target issues and potential sticking points.
Like dancers in sync, communication, trust, and flexibility are paramount to successful mediation. Bell said that developing a rapport with each party can help guide them (albeit slowly sometimes) toward the center of the dance floor.
“You seek to allow the process to work, whatever amount of time that takes,” Bell said. “You really don’t do justice to the process if you rush the process.”
Dunn has orchestrated hundreds of settlements and said that despite the trials of harmonizing opposing parties until the proverbial curtain closes, mediation offers the joys of lawyering without the ongoing responsibility for the case.
But mediation day is every bit as “tiring and taxing” as taking a deposition or being in trial because few cases, predictably, “have an easy and obvious solution.” And while it’s business up front for mediators, constantly waltzing from room to room and interposing themselves into the affairs of another, the parties can party in the back while spending half the day “just chilling.”
After litigating for more than 20 years, Dunn said that he enjoys the ability to control his own calendar, though he can no longer anticipate clocking out when court adjourns.
“The latest that I’ve gone is 3 in the morning and I’ve had several go until 2 in the morning,” Dunn said. “But an important part of the job is you’re the person who has got to cheerlead that thing across the finish line. And if that means going late, we’re going late.”
Bell said that while lengthy mediations are not inherently good, they are often likely to end in resolution.
“If a case is truly impossible to settle, it doesn’t take all day to figure that out,” Bell said. “If we are going late, it means that everyone is invested in the process and still has hope.”
Sometimes, that means dancing the night away. .
Follow Heath Hamacher on Twitter @NCLWHamacher
