The High-Wire Act Called Mediation

 
I once heard an experienced mediator comment: “I care, but I don’t care that much.” I never quite grasped his meaning. Was he suggesting that a mediation session is entirely in the hands of the parties, and if they can’t reach an agreement within a specific period of time, tough luck? Or did he feel that, despite how close the parties got to an agreement, if an impasse arose, he’d be damned if he’d fall on his sword to help them reach the finish line?

Not always, but in many mediations, I feel like I’m one of the Flying Wallendas, balanced on a high wire trying to accomplish two things:

1. Help the parties reach the far end of the wire (settling the case); and
2. Not fall off the tightrope (i.e. keeping a party from leaving the session).

In one case, it took a couple of hours just to settle the division of an estate. I thought we had reached the other end of the high wire. Wrong! I soon learned that more words were needed to finalize the agreement. We had only progressed a few feet on the high wire, and our balance was as perilous as ever. Tempers were growing short, and we hadn’t planned for a meal break.

My thoughts turned to the words of the mediator who “didn’t care that much.” But then I thought about the parties.

• If we lost our balance (and one of the parties walked out), how would I feel?
• How long would the case continue if it were adjudicated?
• How much more emotional stress and financial sacrifice would the parties experience?
• Would I feel I hadn’t fulfilled my obligation as a neutral who might just help them regain their balance and walk the final steps to the other side?

I’m sure my colleagues in the profession have experienced the same. Do we throw up our hands and send them to the judge (which I’ve done in several cases)? Or, do we check our intuition, our collective energy level, and the parties’ commitment to reaching a settlement, and mush on?

I vote for the latter. If toxicity overwhelms the process, suspending the case may be one solution. Adjourning and referring the case to the Court remains another.

But the more I mediate, the more I believe that caring IS important; that there are enough tools at hand to re-frame and re-word sticky language, and finally, ways to measure the parties’ commitment to reach agreement.
 

Sig Cohen
Beyond Dispute Associates
202-359-6141
www.toughconversations.net
sigcohen@toughconversations.net
 

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