The Mediation Process – Follow Up
Once in a while, despite the best efforts of all involved, a mediated case is not resolved at the end of the time allotted. The question then becomes, what happens next? The answer requires analysis of whether my continued involvement will be productive and that analysis, in turn, will be dependent upon the attitude of the parties and their counsel, and of the degree of progress made during the mediation.
Because a case does not settle at the mediation session, does not mean it will not settle eventually.
One scenario is that the parties might need more time to develop information that surfaces unexpectedly at the mediation. If that should occur, the mediation is often considered adjourned until a later time when it can be revisited either with another mediation session or by telephone and email. If the plan is to continue the mediation, an agreement should be made as to what steps are necessary for the next session, and how much time should be allotted for completion of that effort.
Sometimes, the parties get close to settlement and they need time to consider their choices. A plaintiff might ask for some time to “sleep on it” or a defendant might need to go to others in order to get more authority to settle. In that instance, I would ask for an agreement on the time needed for decision, and would offer to remain available to answer any questions or offer any further advice.
Sometimes, progress is made during the mediation but we run out of time and the work remains unfinished. Usually in that circumstance the parties are agreeable to establishing a second date on which to meet, or agree that the balance of the negotiating can be done by telephone and email.
If it is clear that all are in agreement that the case cannot settle during or after the mediation, I will write a wrap up letter reflecting the positions of the parties at the end of the day, and then close and bill my file. Ironically, even a significant percentage of these cases settle eventually, and sometimes with a continuation of the mediation that was not planned. I always offer counsel the ability to ask for my assistance “down the road” if something changes, and tell them that assuming we will not need another meeting, I will offer my assistance without further charge to them.
As a mediator, I believe firmly that follow up is critical if the parties do not settle during a mediation, and I try to be persistent about it.