Much of the time in mediation it is just float-time, and not especially exciting. This is particularly true if you are in separate rooms, and the mediator is next door. Not a lot of rapids, but perhaps nice scenery, especially if you are high on the umpteenth floor of a downtown office tower, looking out over the Front Range.
Then you hit the angry water, and everything changes. The lawyers in one case had pulled me aside before the mediation had even begun. They had been trying hard to settle, but their clients were both kind of “alpha.” Could I be direct with them? Neither could afford an extended period of litigation. Please would I tell them what I thought! My mediation style can be quite directive at the best of times, and these lawyers wanted extra! I was told that neither party was especially fragile, so I took this request as a serious hint as to strategy.
We started in separate rooms, and drifted through the mediator’s opening. The parties each wanted things their own way, but consented to a joint session at my suggestion. I was not so sure that my opinion would have much weight with either party yet. My sense was that this couple first needed to see the depths of each other’s emotional investment in their opposing views. Their previous exchanges through lawyers’ letters had perhaps masked rather than exposed each other’s real depth of feeling about the issues.
We began the joint session. It was THRILLING! Both parties held on tight, but emerged soaked, and retreated to the riverbanks of their separate rooms. Somewhat exhausted, but clear as to each other’s intentions, reality began to sink in: they could not both win on all their issues. Neither had been in mediation before, and they really knew nothing about what was involved – they did not even know how to swim, but they were learning fast. Now they knew that they needed my help to guide them out of this.
We got the deal done, somewhat to the lawyers’ surprise. The parties came in wanting settlement, but started with no clear idea about what it would take to get them there. The peaks and valleys of calm caucuses and crazy animated joint sessions, plus some shuttle diplomacy all made for a truly effective day.
Each party had moved much more than they wanted. At the end we anchored the mediation with reference to where they had started at the beginning of the day. The lawyers and the mediator congratulated the clients for what they had achieved. Who says mediation is easier than going to court – it is generally cheaper and faster, but it can be exhilarating too.