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Sunset in Albufera of Valencia, Valencia, Spain.

Darkness and Mediation

{3 minutes to read}  Someone once asked me what the key was to resolving a case in mediation. My answer was simple: “It starts getting dark out.” Funny perhaps, but truth is implicit in all humor. One of those truths is that almost all people participating in a mediation want it to succeed. Including those who say on the first phone call, “You know, there’s no way this case can settle.” 

A related metaphor to the above is that mediation usually sheds light on things, though it doesn’t happen all at once. Facts emerge, positions get revealed, as do the reasons for those positions, and positions morph over time. Settlements are reached for all sorts of reasons, not the least of which is that everyone just wants to get it over with. Sometimes that happens in a day, several days, weeks, or even months. The desire to get a conflict over with and move on can often be quite a beneficial stimulus to resolving a case. And “when it gets dark out,” people say all sorts of things they couldn’t or wouldn’t have said at the start.

I have had divorce mediations where things were said that might have been said years earlier to positive effect, or couldn’t be said but came out in the unwinding during the mediation. That may sound like an exception to the getting dark out, but the common ground is that people need to dissipate their energies to lower their barriers. And often that happens when the light dims and energy flags.

Personal injury mediations, which are often mediated in a single mediation session, typically start with the parties very far apart. These mediations often begin with frustrating baby steps from each side. But things move much more quickly as the sun gets lower in the sky. Especially on a Friday. 

The other nighttime aspect of mediation success is that parties and attorneys often need to sleep on things. What couldn’t be done by the end of the day on Friday, may have some greater possibilities by the following Monday or Tuesday. Or a week after that.

Some people may wonder if agreements are reached when energies are flagging it means that a party might throw in the towel when they should be holding out a bit more. As a practical matter, no party or attorney has ever suggested, after a mediated agreement, that the agreement was reached too soon. And this is independent of subject matter, as well as for agreements reached in a day as those that took months.

For the mediator, the flip side of pushing when energies are flagging and night begins to fall is just the opposite: suggesting that everyone take a break so they can digest and process what has been discussed. If parties are getting dejected and starting to feel there are no solutions, that can be the perfect time to stop and set a date for reconvening. Never underestimate what germinates when people are asleep.

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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