Lately, I’ve had a series of mediations where the parties are seemingly just not “ready” to give up or give in in order to achieve a settlement on the day of the hearing. When this occurs, I offer the parties some encouragement and normalize that as the process in many hotly contended cases. After the day’s hearing, I typically send an email to both sides offering to be a sounding board for further thoughts. Sometimes, I give it a day or two and then said them an email that declares that “I had some ideas” and inviting them to call me. Sometimes one side calls and the other does not.
As we hear said about Senator Elizabeth Warren, “Nevertheless she persists”. Until the case settles, I have that matter on my “To Do” list to call or email–daily, weekly, monthly or at pivotal times before or after important depositions or motions. Virtually all of them settle. This leads me to conclude that the timing of the mediation hearing itself may not always be the best timing for the ultimate settlement.
We mediators have to surrender to the notion that often times, an early mediation is really designed merely to find out more about the adversaries’ position: both on liability and damages. Once it is known (even if it never gets to a true “bottom line”), both sides have the information they need to fully evaluate whether it’s worth pursuing the claim or defense, or whether the better way to expend their time, energy and resources is to pursue further negotiation.
We hold no crystal balls–but we may hold a good wrist watch which can remind us when the time is right and seize that opportunity or moment.