It's 5 O'Clock and the Whistle Blows

As advocates and mediators, we’ve all been there.  It is late in the day, the parties are checking their watches, counsel are gathering their papers and the mood in the room is darkening. Is it time to pack up and get ready for tomorrow’s case, or time for a “reset” in an attempt to resolve the outstanding issues?  The question on everyone’s mind is: Have the parties reached an impasse, rendering further discussions futile, perhaps even counterproductive, or can they, with the assistance of the mediator and counsel, infuse the mediation with new energy, fresh ideas and a spirit that declares “Let’s get this done?”

The answer to this frequent 5:00 p.m. challenge is not always obvious, but is framed by a number of assumptions which guide my analysis.  The first, is that counsel and parties have gathered—often at considerable expense and inconvenience--because they share a sincere and mutual desire to resolve their dispute under terms that are fair, if imperfect. The second is that despite the frustration that may develop over the course of a difficult negotiation, and the temptation to declare that the mediation is stalled, counsel and their clients generally welcome and expect the mediator to encourage the discussion to continue and to urge the parties toward a settlement.  The third is that it falls to the mediator, with the assistance of counsel, to accurately assess whether the proverbial 5:00 p.m. stall is just that, or a true impasse that is unlikely to be surmounted.

Like so many of the judgments that are made during the course of a mediation, the analysis is informed as much by instinct and impression and the knowledge of the styles of counsel as it is by the sequence of offer and demand.  As I conduct my diagnostic, here are some of the questions on my checklist, some fairly prosaic, but almost always informative:

• Are the parties, counsel and the mediator simply tired, hungry or cranky and in need of a break to refresh?  I am inclined to that conclusion when I hear an endless loop of mediation-speak greatest hits such as “We will not bid against ourselves”;  or “This is not a mediation, it’s a stickup”; or “We need to send a message”; or “The other side needs to get serious quickly.”  Often, a pause in the mediation can reinvigorate the discussions and the vocabulary.
• Is there insufficient settlement authority in the room?  Especially in cases involving insurance carriers,what appears to be an impasse is in fact the absence of adequate settlement authority vested in the person attending the mediation.  If that is the case, then a candid discussion needs to take place concerning the ability and likelihood of additional authority being obtained if the mediation is adjourned for a brief period of time and the need for the parties to conditionally agree on a settlement value before the session is concluded.
• Is the final issue holding up settlement really about money or is it about something else?  Dollars and cents are often the proxy for other below-the-surface issues. This is  especially true in trust and estates, employment and closely held business disputes where the conversation is about money but the real issue concerns non-monetary grievances.  The answer to this question can often unlock what appears to be an unsuccessful settlement discussion.
• Is personal dislike between the parties, or imagine, even counsel, the impediment to an agreement?  Outsized egos and personality conflicts can be as much an impediment to productive discussions as the substantive issues themselves.  The mediator needs to make that assessment and be prepared to deliver the “It’s not about you” pep talk if he concludes that the 5:00 stall is a function of personality driven issues.
• Does a party need to emerge as or perceive himself to be the “winner” in  the negotiation?  If so, then symbols, token gestures or carefully phrased settlement terms can provide the pathway to resolving a stalled mediation.
• Is there a schism between counsel and client as to reasonable and fair settlement terms?  What may appear to be an impasse may in fact be a difference of opinion between counsel and client.  That difference may run in both directions with the client objecting to a settlement because it is perceived to be insufficient or the attorney objecting, despite the client’s likely assent, because of counsel’s belief that additional negotiations will yield more favorable terms.  In either case, the mediator who is able to identify those issues can serve a useful role by meeting with both client and counsel to discuss their respective concerns.

Assuming that after careful evaluation and discussion the mediator concludes there is not an impasse and that further conversations will likely be productive, there are a number of techniques/approaches that the mediator can utilize to bring the parties to a final settlement.  Some of the most effective techniques include:

• Bracketing the range of the final settlement discussions.   For example, if the defense last offer is $1,000,000 and the plaintiff’s last demand is $5,000,000, and the mediator has a reliable sense that the defense is willing to offer north of $2,000,000 and the plaintiff is willing to accept less than $3,000,000 than establishing a final negotiating range between $2,000,000 and $3,000,000 might be productive.
• Mediator’s final proposal.  While this may be fraught with risk if not carefully evaluated and discussed, there are times when both parties will benefit from the mediator making a final settlement recommendation and inviting the parties to reflect on it and report back confidentially as to its acceptance or not.
• Encourage the principals and/or experts to speak directly .  In certain business, environmental and construction disputes, for example, the parties or the technical experts are in the best position to understand the pathway to a settlement and can identify the outlines or even details of a settlement through a direct conversation with each other.

The old phrase that “it is darkest before the dawn” applies with equal force to mediations that appear to be at risk of failing.  With additional hard work, a small measure of creativity and a dose of good will, most hurdles can be overcome.

Retired Judge Robert L. Holzberg leads the ADR Practice at Pullman & Comley LLC. Prior to joining the firm, he served as a Connecticut Superior Court Judge for more than 20 years.  Reprinted with permission from the December 16th issue of Connecticut Law Tribune. ©2014 ALM Properties, Inc.  Further duplication without permission is prohibited.  All rights reserved.