"Cooling off” may encourage successful resolution

Many measure the success of a mediation by whether or not a settlement is reached. In fact, many mediators will tout that they have a high success rate in cases that they have mediated. But sometimes the best thing that a mediator can say to the parties is “you are not ready to settle this case, and let’s have a cooling off period for reflection of everyone’s settlement positions.”

All litigation has emotional components. But the two areas where I primarily mediate — bankruptcy and domestic — are especially highly charged. It is not uncommon for me to spend most of the first day of a mediation listening to the parties state their personal grievances and their respective settlement positions.  Often, by the time that process is accomplished, everyone, including me, is emotionally drained. Usually, the settlement positions of the parties are vastly different. Trying to bridge the gaps in settlement positions when everyone is worn out is not a good idea. 

Under these circumstances, the most wise and productive approach may be to outline the areas of difference between the parties, to suggest some things to each party to consider as a means of moving toward consensus, and to send them off to come back another day. As I write this, I am in the middle of the second day of a mediation that started almost 60 days ago. At the end of the first day, the parties were very emotional and every little point of disagreement on settlement terms set them off. Neither side was willing to give on much of anything. I stopped the discussion that day before it got to a “take it or leave it” situation. I told the parties that if we kept going that day, we would surely eliminate any possibility of a settlement. I urged them to think about their respective positions without emotion and to think about the consequences of not settling the dispute. I asked them to let me know when they were ready to meet again. We are meeting today, and there is a real chance of settlement.

If these parties had not returned, I would have still felt that first session was a success. Pushing forward with the first session would have ultimately led to a bad result.