By Kyle Johnson (c)
The process of mediation in connection with a pending law suit can be extremely rewarding and satisfying as the parties are assisted by a skilled mediator in arriving at a settlement. As a general rule, even if unsuccessful, the mediation and the time spent move the parties closer to settlement. Ideally, each side learns a lot more about the positions and objectives of the opposing party. Unlike a trial or a court appearance, with all its formalities, the mediation setting and the way it is conducted tends to informality and open exchanges; the parties are encouraged to express themselves so that the mediator can better assist them in arriving at an amicable result. The parties are also free to walk away from the negotiating table if they conclude they are too far apart or that they just want their day in court.
HOW "MEDIATION HANGOVER' HAPPENS
There is, however, a part of the experience that I want to address in this blog that sometimes occurs and it is the feeling that comes on the day after the mediation. I call it the “mediation hangover” but it is not a real hangover, more second thoughts or reservations about what happened the day before. It's important to be aware of because it happens and it helps to know in advance that the day after reaction is normal and may even be part of the process.
The day following a mediation frequently produces lots of questions and second thoughts. Sometimes it is a day of anger or frustration as one of the parties concludes that he or she has given away too much in reaching an agreement. He or she may also feel that they were either rushed or pushed into signing something without a complete understanding of the consequences. Experience in conducting mediations teaches one that it is almost always a mistake at the end of a long day of mediation to encourage a reluctant party to sign off on a settlement. It is equally a mistake to encourage an emotionally drained and obviously exhausted party to go ahead and sign an agreement when it is clear that the ability to negotiate further or comprehend further has slipped significantly from where it was at the beginning of the day. A day spent in mediation can be exhausting for everyone, especially for someone not familiar with or used to the process.
A synergistic mediator with EQ (emotional intelligence) will pick up on the signals that are coming from the parties and respond accordingly during the mediation.
We all function differently under stress and participation in mediation for someone who has never been through a mediation can be quite stressful. The need to make important decisions under pressure while being asked to concede or compromise cherished legal positions causes emotions to fluctuate with lows and highs during the day. The expectations for a settlement at the start of the mediation day are often miles apart from the reality of what is offered at the end of the day.
The broad brush of mediation tends to focus on material terms of settlement more than implementation or incidental details. The agreement signed by the parties in mediation is often quite brief and lacking in miscellaneous details. However, what are minor matters to the lawyer are often extremely important to the client. And, after all, it is the client of the lawyer who is bound to the deal if one is signed. Understanding all of the terms and all of the legal issues as they roll by during a mediation requires concentration and ability to absorb information that is extremely difficult without legal training and experience.
For those who were unable to settle at mediation and are frustrated at the perceived failure, the question is almost always the same: Did we waste our time going to mediation? What did we learn, if anything? Other questions follow: What next? Are settlement discussions over? Will we mediate again?
For those who reached and signed a settlement agreement at mediation but are not certain they did the right thing the first question on the next day comes down to this: Am I stuck? The next question is essentially the same: Can the other party to the settlement walk away from the deal or are they stuck also? The answer to both questions should be the same, yes, both of you are bound to a legal agreement that a court will recognize and enforce. Are all the details included in what was signed? Normally, the answer to that question is a clear no. The details will have to be filled in by the lawyers continuing to negotiate and through exchange of drafts of further agreements, or by the Mediator acting as an arbitrator to resolve omitted or unresolved open issues.
Is a mediation hangover inevitable and how can it be avoided? No, it is not inevitable and yes, it can be avoided by following a few simple precepts. As stated in this blog, regrets and second thoughts on the day after are perfectly normal if they occur. It is always a good idea for the lawyer and client to have a post mediation conversation on the following day.
WHAT SHOULD YOU DO TO AVOID "MEDIATION HANGOVER"
During the mediation as it occurs, the first rule is to listen carefully and don’t fear becoming an active participant in the mediation. Don’t get rushed. To the extent there is full understanding and response to questions and concerns, there will be much less negative reaction on the day following. The second rule is to remember that the mediation represents what may be the best opportunity during litigation to arrive at a settlement that is negotiated between the parties and is owned by the parties. In a trial or arbitration, unlike a mediation, the parties to a law suit are subject to the decision of a judge. In a mediation, the parties get a chance to create their own settlement. Finally, don’t be afraid to interact with the mediator if you think you are being rushed or don’t understand something. The mediator is there to facilitate and to help with the negotiation. Don’t be afraid to ask questions or convey emotions.
All is not lost if the mediation fails to produce a settlement. Offers can still be exchanged and negotiation can continue, with or without the help of the mediator. Most professional mediators want to and will stay involved post mediation in an effort to bring about an agreed resolution. Many cases settle post mediation and in hindsight the mediation is seen as having jump started and contributed to the process of settlement.