Mediation tip: Letting it percolate

October 29, 2012

Fortunately most cases do resolve at mediation, yet sometimes they need time to "percolate". Time allows you to process all the new information that came out at mediation, or to get over unresolved emotions. I have received calls from attorneys in the parking lot the same evening after leaving mediation, or sometimes the next morning, saying their client will agree to the number that was on the table.
Allowing parties to "percolate" on the process, can be beneficial, because it allows a person to make their decision when they are ready to do so, rather than under time pressure at mediation. During the past 2 weeks, some cases couldn't get settled at mediation, no matter the effort. For some, it was higher or lower values than expected; for others, surprising new fact disclosures, or, needing to get more financial authority. Common to all were the high emotions involved. Most settled within 24-48 hours of the mediation. What this demonstrates is that we can't always expect a case to settle in the prescribed time. We hope it will because everyone is looking for closure "now". Even the staunchest objector to settlement usually feels some disappointment walking out of a mediation without a settlement, or closure. What we have to appreciate, however, is that for some people, that extra time to "percolate", letting everything sink in, is crucial to reach that final decision. There is always a risk in doing so, as one or both sides may lose the momentum that built up over the day of mediation. In some cases it is simply the right thing to do.

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