The Closer

A Mediation Newsletter September 2013

Making the Time for Mediation
by James Rainwater

As a mediator, I regularly address issues in mediation that relate to the process, documents, preparation, and the like. However, something that is rarely discussed in Alternative Dispute Resolution is the subject of time. How much time should a particular matter take to resolve? How much time should a party be allowed to mull over an offer? And how much time is available for the conference?

When attorneys initially plan for mediation, several factors should be considered: The disputed matter's level of complexity, the client's disposition to settlement, the attorney's familiarity with both the client and the case, and the amount of supporting documents - to list the main elements. Having a grasp on these can assist the attorney in knowing how much time the conference should be given.

Ordinarily, the mediator will schedule a half-day or full day mediation. While most cases are set for a half-day that is typically three to four hours long, some matters reach a complexity that may require multiple days. It is best that the mediator and opposing counsel all firmly agree on the allotted amount of time for mediation. It is not unusual for an attorney to state that a particular case will only need a half-day; when in reality, the conference takes an entire day.

Running out of the designated time for a conference is extremely frustrating and can be detrimental to a settlement. My best analogy is taking a final exam, having ten essay questions remaining, and being told there are only five minutes left. Reasoned agreements become difficult to forge when the added pressure of time is present. Not all parties make decisions in the same manner or speed, and other unforeseen factors may prolong the conference.

While a time constraint can force the parties to focus more efficiently, constantly racing the clock only adds aggravation to the mediation. I suggest that attorneys set aside ample time to resolve their clients' matters. If you have a client who needs more time to comfortably digest an offer or counter-offer, I would advise you to pad your schedule to allow for an extended conference. I believe it is much better to take five hours to settle a case, rather than suspending and rescheduling the mediation after three hours and risk losing the momentum of resolution.

Rainwater Law