A frequent hurdle that I often see in mediations is the parties' willingness to give up too soon. Perhaps it is our society today, but we all seem to be a little less patient than we used to be. While most of the world moves fairly quickly (sometimes too quickly), successful mediations and negotiations require patience and persistence.
One of the beauties of mediation is that the parties get a chance to tell their story. Everyone has one. While we usually think of them from a plaintiff’s perspective in a personal injury case, they are just as prevalent in business disputes. People want to be heard. Many mistakenly have a desire to go to court, so someone will hear their pleas (pardon the pun) – either how they were wronged or the fact that they did no wrong. Those of us who have spent our careers in the courtrooms know that it is not the best setting for someone to feel like they’ve been heard. Those who go to court with that need most often leave disappointed.
Mediation gives the parties the opportunity to tell their story, which is an important part of the process. Trying to negotiate before that opportunity is exhausted doesn’t often bear fruit. As a mediator, I have learned that the time spent allowing the parties to vent is time well-spent. It will save a lot of time in the long run. Everyone needs to be patient and let this part of the process work.
Negotiations are a process. They take time. What most are willing to settle for after a few hours is much different than what they are willing to settle for at the beginning of the day. With all that everyone is dealing with these days, moreso than perhaps ever before, it takes time to focus on the matter at hand. Once that focus is achieved, then the pros and cons of settlement can be explored, along with the wide variety of options that parties have at mediation to satisfy their needs and interests After all, mediation allows resolutions that courts cannot. But this too requires some patience.
For traditional insured losses which necessarily only involve an exchange of cash, there are usually two negotiations that take place. The first is to each side’s predetermined goal. Most of the time, those goals do not overlap. There must be a second negotiation to close the gap. Many negotiations never make it to that second stage. People realize that they are not going to be able to settle the case at their goal (perhaps before they get to it) and abandon the process. They either settle later in that gap or wish that they had.