Keeping Communication Open: What Happens When a Case Doesn’t Settle

The overwhelming majority of cases that the parties settle do so during the mediation session(s).  Since between 94-96% of all civil cases filed resolve before trial, with few exceptions, it’s simply a question of “when”and not “if.” There are few better ways to get a case resolved than when lawyers and parties are in the same office, even if they are in different rooms.  If a crucial question arises and needs to be put to a party, the freedom to ask it face-to-face is extremely valuable in addressing issues that are driving the dispute.  But there are always those cases that won’t resolve at the mediation session.

The reasons may vary, but in my experience, if significant in a pre-mediation position is required and there’s not sufficient time to digest the realities of settlement, the mediation simply has to continue telephonically or in a second session.

Sometimes, a drive home, a night’s sleep or even longer (i.e., a deposition or a document production) will clarify things.

If the case or dispute is going to be one of the 90+ percent resolved soon after mediation, quite obviously, the mediator has to follow up on the case.  Sometimes a light touch can do the trick, other times considerably more persistence is necessary.  We are all busy and the nature of what we do is to “move on to the next fire” but where there is a will, there is almost always a way to structure an agreement.  Even if the case proceeds to trial or arbitration, it is still important to leave open the possibility of a phone call, text or email.

In one case I recently mediated, “Part One” of the dispute originated in February 2013 and was ultimately resolved in April 2013.  “Part Two” was mediated in April 2014 and was resolved at the end of August after dozens of phone calls, emails, messages, etc.  The credit definitely belongs to counsel and the parties for keeping things moving despite discovery, numerous motions and other obstacles, but having a hand in keeping the communications going, making suggestions and overcoming obstacles is something of which I am quite proud to have been a part.

Indulge me a brief story: when he was called upon to try to mediate the Northern Ireland dispute in 1998, Sen. George Mitchell listened, ad nauseum, to each side’s repetition of ancient hatreds, dogma, refusals to even be seen with the other sides, etc.  In a land where Sinn Fein murals celebrate the quest for Irish unity among Catholics and “Remember 1690” (that’s the year 1690!) murals celebrate William of Orange’s Victory in the Battle of the Boyne establishing a Protestant majority in Northern Ireland, there was no room for half measures.  It took over two years, and the accords actually came together rather quickly in the last few weeks.  Mitchell would say later that he would always listen and would always remain available to do so.  There was always hope because there was always communication and there was always a place to vent and let off steam.

Agreements can and should be made and it is incumbent upon the mediator, with the help of the parties, to keep communication open and moving.  Don’t let go, don’t get too busy and don’t give up!  Pick up the phone, write and email, or send a text saying that you want to talk.  Over 90 percent of your clients will thank you!

Sean E. Judge is a mediator with offices in Woodland Hills, CA.  In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants.  To schedule a mediation with Sean E. Judge, contact a case manager at (877) 258-8637 or via email: Mediation@CEDRS.com.