Imagine you represent a party in a contentious litigation. It has taken considerable time and effort to plan for today’s mediation. Nothing about the process of getting here has been easy, and you do not expect the negotiation to go smoothly either. While your client would settle for a “fair” number, you worry the client might have unrealistic expectations and would be just as happy to litigate. It is now 4:30 p.m., and you have not seen the mediator for almost an hour. While there have been a few rounds of proposals, the parties are still very far apart, and time is running out. You and your client are getting increasingly frustrated with the process, and all the waiting is making things much worse. You have tried to finish a brief on another matter during the “dead time,” and your client has taken several emergency calls, but it is difficult for you both to concentrate on other work.
You try to keep the client calm, explaining that the mediator is likely working on the other side to get realistic, which takes time. But even as you say that, you can’t help wondering, “Why is this taking quite so long?” From your perspective, this is a straightforward case. If the mediator does not come back soon with news of meaningful movement from the other side, you are concerned that your client will call it quits. As the mediator rejoins your room, apologizes for the delay (which helps, but not nearly enough), and begins to summarize the other side’s “three main concerns,” your client sighs with exasperation. You begin to worry that the opportunity to settle this case is slipping away.
The above scenario may seem familiar. It is a common occurrence with the conventional mediation model, where the participants attempt to pack an enormous amount of complex, and often emotionally charged, work into a single day. At the close of business hours on the day of a mediation session, mounting anxiety and waning energy can create a truly combustible atmosphere. On occasion, this can lead to impasse. But even if the parties manage to reach a deal in this pressure-cooker environment, they may feel frustrated with, and exhausted by, the process. The parties may even get to “yes” simply because they cannot stomach any more negotiation and just want to go home, creating the potential for “settler’s remorse” and the unwinding of agreements.
Mediation does not have to be this way. Scholars and mediation practitioners have begun to question whether a multi-stage mediation process, in which discrete parts of the mediation are tackled at different times, might offer a better approach, at least in some cases. In a recent article, I explored how virtual caucuses on a video-conferencing platform, separated in time from each other and the bargaining session, can be used to improve the overall mediation process. Additionally, alternative dispute resolution scholar John Lande of the University of Missouri School of Law has written an excellent piece tracing the evolution of multi-stage mediation, linking it to the inherent flexibility of the mediation process, and highlighting its potential to increase the quality of mediation decision-making.
Here are some of the principal benefits of a multi-stage mediation model:
- Eliminating mediation “dead time” while the mediator caucuses with the other side
- Enhancing substantive engagement by allowing more time between stages for reflection, follow-up homework, research, and/or fact-gathering
- Reducing anxiety and stress, particularly during the later stages of the bargaining process
- Improving the quality of ultimate decision-making and decreasing the likelihood of “settler’s remorse”
- Increasing meaningful participation of high-level decision-makers by reserving discrete stages for their active input
- Creating a flexible, multi-staged process tailored to the particular dispute and the personalities involved
The COVID-19 pandemic has been a catalyst for the multi-stage mediation process, both because the shift to videoconference mediations has required experimentation, and because the technology facilitates asynchronous engagement. I have used this model during the pandemic with promising results. In one case, I conducted a pre-mediation caucus with a plaintiff who was skeptical about mediating; the virtual caucus session proved instrumental in securing the plaintiff’s buy-in to the process, which set the stage for subsequent negotiations. In another case involving two parties to a bitter business divorce, I conducted a series of asynchronous virtual caucuses on different days prior to a full-day virtual negotiation session that ultimately resulted in a deal. This multi-staged process helped the parties keep their composure, stay focused, better understand their counterpart’s perspective, and ultimately arrive at a mutually acceptable separation. It seems unlikely that we could have achieved the same result if we had tried to accomplish everything in a single day.
While videoconferencing technology facilitates the multi-stage mediation process, there is no necessary connection between the two. Many virtual mediations still use the traditional one-day model (where battling “Zoom fatigue” can be as much of a challenge as sitting in a conference room for an entire day). Conversely, a multi-stage approach could be used for a series of in-person mediation sessions. Hybrid approaches are also possible. It is really a question of mediation process design.
Drawing upon the inherent flexibility of the mediation process, you can work with your mediator to design a process that best fits the needs of the parties and the particular dispute. A multi-stage mediation process—whether online, in-person, or a combination—deserves serious consideration in planning for your next mediation.
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