The mediation process often comprises a series of private caucuses as the mediator engages in what the parties like to call “shuttle diplomacy,” and we mediators call “mediator ping pong.” Those individual sessions often force the mediator to fight for every inch of turf and require the re-litigation of the issues in the case. Parties often believe that if they persuade the mediator of the wisdom of their position and the unquestionable bad faith of the position taken in the other room, then they will “win” the mediation.
At the end of these private meetings of posturing, positioning and persistent bargaining, as I make my way to the door, the parties often call out encouraging platitudes: “That’s why you earn the big bucks;” “If it was easy anyone could do it;” or my personal favorite, “Go work your magic.” As I leave the room after these sessions and platitudes, and head down the hall toward the opposing side’s room, I often think about what the “magic” is that makes the mediation process successful.
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American Bar Association
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