Our last blog addressed the importance of using patience during a divorce mediation. Divorce mediations necessarily take place over time since the parties need to come to terms with the emotional aspects of their decision making. Couples are most often (though not always) together in the same room, since a critical goal of divorce mediation, especially when there are children, can be enabling the parties to communicate after the divorce is over.
In contrast, commercial mediations tend to be more marathon affairs, involving aspects of shuttle diplomacy. The mediation usually starts with the parties together but then separated throughout much of the remaining period while the mediator goes back and forth, teasing out offers and demands and, like in a divorce setting, allowing emotions to be vented.
From the mediator’s standpoint, it is important to patiently listen during these early stages of the process, to let people vent and express their outrage at particular offers and demands. Ideas must simmer and be discussed with one party, and then the other. Initially unacceptable proposals can mutate throughout the day (or days) and lead to discussions that were not originally contemplated. This part of the process cannot be rushed.
It is also important to play out various what-if scenarios. This can get the parties thinking along different lines. An ongoing dialogue with the parties and their attorneys about what-ifs can lead to new ideas and possible solutions.
The mediator must create buy-in to the process by letting the parties know that time is on everyone’s side if used properly. This includes varying the shuttle diplomacy. While much can be gained from speaking to the parties separately, bringing them back together at the right time for direct discussions can allow for the exploration of ideas previously discussed separately. This is where the parties’ expertise – they know their business better than the mediator, and better than their attorneys – can be used to expand the possibilities of a settlement.
Now the flip side. Deadlines can be extremely helpful in resolving commercial disputes. A commercial mediation that begins at 9:30 a.m. and continues, almost non-stop throughout the day, can actually benefit by wearing people out. This can help remove barriers. When everyone’s hungry, it’s 4 pm, attorney’s fees are mounting and multiple settlement options have been debated – and someone needs to catch a 5:50 train – hardened positions may begin to soften, something that could not have happened seven hours earlier. While a mediator must be patient and let things unfold, this can be the time to push and cajole. This is when creative solutions arise that neither side had previously considered. Or when the alternative to a little more or a little less money means that a resolution now clearly makes the most sense.
So the recipe for a successful commercial mediation can include ¾ cup of patience, ¼ cup of “impatience” and just enough food to keep the parties alive but not sated.