Mediation tip: The importance of “here and now”

September 8, 2013

Most people come to a mediation with the hope of settling. When a mediation ends without a settlement, even the hardest-core negotiators feel & often express a sense of disappointment or letdown. When numbers stay in ranges outside a realistic range of settlement, parties begin to lose hope. The mediator, having insight into the parties' real goals, will be pushing the parties to make that large move, to help "incent" the other side to do likewise. When that move is made, the doctrine of reciprocity kicks in, the other side makes their own large move, and the case will settle. Two recent mediations come to mind where the cases did not settle at mediation due solely to one side remaining in unreasonable ranges and refusing to budge.   Both cases later settled, and in the very range they could have settled at mediation. By then, the parties lost anywhere from 1 week to several weeks, increased their legal fees and costs, without bettering their settlement position. Perhaps they believed that staying "strong" or walking out of mediation now would intimidate the other side and improve their position. In truth, all they achieved was delay in settlement and prolonged litigation costs. The lesson here is that there is a huge upside to seizing the opportunity to reach a settlement- here, today, now.


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