A frequent hurdle I often see in mediation is the parties’ desire to throw in the towel too soon. Perhaps it is the way things are today – we all seem a little less patient than we used to be. While most would agree that life moves too quickly, successful mediations shouldn't. They require patience and persistence.
One of the beauties of mediation is that the parties get a chance to tell their story. Everyone has one, not just the aggrieved personal injury plaintiff. There are just as many stories in environmental mediation. If you don’t know them, then you haven’t asked. People want to tell their stories. They want to be heard. Many mistakenly believe that there only chance to tell it is in court. Those of us who have spent our careers in the courtroom know that few parties leave it feeling like they’ve been heard.
Mediation allows the parties to tell their story and gives them a neutral third party to hear it. Trying to negotiate before that opportunity is given 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. They will vent sooner or later. If sooner, perhaps it won’t prevent negotiations. This means exhibiting a little patience.
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, it sometimes takes time to focus on the matter at hand. Once that focus is attained, then the wide variety of options that the parties have to satisfy their needs and interests can be explored along with the pros and cons of each. After all, mediation allows resolutions that courts cannot provide.
In most mediations, there are usually two negotiations. The first is to each side’s predetermined preferred settlement range. These goals do not often overlap. There must be a second negotiation to close the gap. Many negotiations never make it to that second stage. People assume or realize that they are not going to be able to settle the case at their predetermined target (perhaps before they even get to it) and abandon the process. They either settle later somewhere in that gap or wish that they had. Being patient and persistent allows the matter to be resolved there at the mediation (or shortly thereafter) in that gap, which is usually in everyone’s best interest in the long run.