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{4 minutes to read}  Sometime back, I wrote a blog about how long divorce mediations can take. Divorce mediations typically take longer than most other mediations because people involved in divorce, especially when there are children involved, need to create new lives for themselves and their families. This can take a while. Very often it is during the mediation that a couple goes through the actual process of physically separating, working out the details of how they will handle finances, children, personal property, and whatever else may come up. It’s also common that one spouse is more eager to get divorced than the other.

Other mediations can also take a while but they don’t usually take months — though some do. Many are resolved in one long day, while others may be resolved in several days, or over the course of a few weeks of going back and forth between the parties. The key in all successful mediations is perseverance. And more than anything, it is the perseverance of the mediator.

While the parties must participate, their willingness to do so is often because the mediator keeps them participating. It’s gentle but persistent prodding — the type of thing that doesn’t always work between family members. One key benefit of mediation is that the mediator is a neutral person who hasn’t lived with the parties for fifteen years. The mediator thus has more license to prod.

I recently had a conversation with a defendant’s attorney who described a case in which the mediation unfolded in the following way. The plaintiff started out with a very high demand, the defendant then countered with a rather low-ball offer, and the plaintiff said they were finished for the day and left, because it was clear to them that the defendant wasn’t serious.

My comment to this attorney was that almost every mediation I do (and really, almost all mediators do) starts out with high demands and low offers. But I never let anybody leave after those initial offers and demands. That’s when you lock the doors and get down to business. That’s when the mediation begins.

What the plaintiff never learned in the case described to me was that the defendant was willing to go significantly higher. Well, of course they were.

The bottom line? Lawyers and parties about to participate in a mediation should not just have an open mind as to outcomes, but also as to the process. That means they don’t know what they’ll find out unless they’re willing to sit around and talk, and sit around and talk some more, and perhaps sit around and talk some more. This can be frustrating and it may not always lead to the desired outcome. Sometimes, however, the desired outcome changes during the mediation, but that benefit only comes to those with the patience and perseverance to stick it out. As compared to the months and years and cost of litigation, the extra time spent mediating, whether it’s a few hours or spread out over days or even several weeks, might yield enormous benefits. Sleep on it.

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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