MAC Blog

Iterative Mediation

By Simon Mole, MAC Professional Member

We all know that if you have a coach, this is a positive thing because you have been pro-active and taken charge of your life.  Conversely, if you are in mediation, we all know that you have real problems.  This article is about the value of multiple short mediation sessions in the age of Zoom.  It is a vision for mediation being more positive, more like coaching.  But first, let’s look back at where we have come from.

A decade ago, back in the dark ages of mediation, “mediation day” was a big thing.  You had to carefully choose a location, and people even considered the size and shape of the table.  All the key players had to be physically present, but not in such close quarters as to foment actual violence.  On occasion parties flew-in to my mediations.  Mounds of documents were produced and assembled by staff into heavy ring-binder exhibit books.  This cost money, lots of it.

Mediation day is almost dead.  The value of mediation day was to present such a trial like deadline as to make anything other than settlement unthinkable.  To come back another time was much harder when drive or flight time was an issue.  Even if rescheduling was possible, all those exhibit books would likely be out of date by then, costing more staff time.  Back in the dark ages attorneys begged to keep mediation hope alive by going long past midnight, even when client sanity became questionable.

Today, my typical mediation lasts for only a single session of two to four hours.  Sure, some mediations do crash and burn, but many cases settle quickly and easily.  However, many cases also fall into a middle ground.  Parties who disagree on substance can often agree on a route to a resolution, such as hiring an expert, but then further progress is stalled until the expert’s report comes in.  Often a case is revealed to be more complex than one or both parties thought.  In these cases, time is needed to gather information or make a legal or emotional reassessment.  These are the cases that need to come back for a second or even a third session.  In post-decree family cases you may see a case again and again over many years.

Back in the dark ages, mediation day was scheduled by the parties, and was usually timed to take place far out into the future.  Time was needed to allow for the full discovery of all information necessary to settlement. This made sense when mediation day was an expensive one-time-only deal.   Circumstances have changed.  In today’s climate of mandatory mediation orders, the courts require mediation early and often, even when parties have imperfect information available.

With Zoom and its screenshare facility, parties can now go online and show each other financial and other information in real time (R.I.P the ring binder of outdated hard copy exhibits).  Early mediations can go further toward settlement than they used to.  Mediators can coach the attorneys and clients to manage their case through the mediated appointments of valuation experts, or child and family investigators etc.  Even case management orders can be mediated and stipulated under CRCP Rule 16.2(c)(1)(C).

As mediators, if we can speed the demise of mediation day, we can become more like coaches, stepping in when needed.  When expert reports arrive, some cases will settle without us because the writing is on the wall, but in others the skill of a mediator may be necessary to help manage fall out from bad news.

To get from where we were a decade ago, to where we could be in the future, we mediators need to adjust our business model. I do try to look for deals on case management when substantive deals seem elusive.  But I also make it inexpensive for parties to come back by never charging a cancellation fee.  I never take money up-front either, so I never have to give re-funds.  Yes, I do get frequent cancellations, but I also get much more new business because lawyers like this model because it is hassle free and it saves money for clients who settle.  I do a two-hour minimum fee each time I start a session, so that recoups some of the loss from cancellations because final sessions are often short when they occur.

Those excruciating all-day and into the evening sessions were very lucrative, but I don’t miss them.  By using Zoom and not wasting time driving to my frequent short sessions I maintain both income and sanity.

 

Simon Mole, February 2024.