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Mediation Tip: Settlement doesn't have to happen today

Recently, I experienced an unusual number of mediations not immediately settling at the mediation. Every mediator at some time, goes through feelings of "failure" if they are unable to settle a case. However, we also know that not everyone is in the right place to settle when they appear at a mediation. There is also the adage, "The right number at the wrong time is still the wrong number." So, despite having good fortune in most cases to move parties past "stuck" and resolve after a long day or night, in these particular cases, it became clear that one or both sides were not ready to settle, and no amount of optimism was going to bring about closure that day. (I'm not sure, but the full moon could have been a factor) I reluctantly sent everyone home, and afterward began follow-up. Once the pressure of mediation was removed, the parties and lawyers (and in some cases, the involved spouses) had a chance to sleep on and digest the many pieces of information that they learned during the mediation. As the prospect of resuming litigation re-appeared, and risk factors were better recognized, many people softened their position. They did not become "soft", they simply shifted their stance a little, and that little bit of movement was enough to engender a little movement on the other side. This resulted in settlements within anywhere from a few days, to a month or two. The lesson from this is that not everyone is going to be ready to settle at mediation; however, as with wine, perhaps, a little airing and time may be necessary for a settlement to ripen.”

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