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Does it Matter What Time a Mediation Starts?

Someone once asked me what the key was to resolving a case at mediation. My answer was: It starts to get dark out. 

No one wants to leave the mediation at the end of the day with nothing to show for it, and as the skies deepen, people often start to modify positions that were much firmer earlier in the day. The logical extension of this is that the winter solstice is your friend and the summer solstice can be a setup for a very long day.

Of course not every case gets resolved in one sitting and the setting sun may have little effect on divorce matters, which often unfold over several months as the spouses figure out how to navigate a new landscape involving kids, houses, finances, and summer vacations. But a large percentage of mediated disputes are limited to issues that will be resolved by one party paying the other a sum of money. In those matters, I often find that people don’t want to end the day without a resolution. 

Ergo, one approach to using the darkness as your friend is to start the mediation at noon or 1 rather than 9:30 or 10. This may sound absurdly simplistic — that’s because it is. When the mediation has started in the morning and it’s 3 pm with no resolution in sight, people are frustrated and want to leave. If you have started at noon and it’s 4:30, people haven’t spent as much time and are beginning to think they have a limited amount of time to tie things up. There isn’t, in fact, a limited amount of time — they can always continue the next day or next week, and I always tell people that. But I also tell them to stick around to see what might be accomplished by the end of the day. Which at that point isn’t too far away.

This is not a one size fits all suggestion.  It’s a try it out and see what happens suggestion.  If you want to vary it a bit more, try doing it on a Thursday or Friday.  Whatever you do, there is very little downside. 

Have you ever noticed that a setting sun may spur people to modify their positions so an endpoint is closer, or reached?

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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