Canadian mediator Rick Weiler wrote a blog post raising concerns about whether predominant model of commercial mediation using a single three- or six-hour session promotes good decision-making by litigants. He wrote:
The current commercial mediation model handed down over the past 30 years is working just fine for lawyers and mediators (not to mention the court system). A settlement is the goal at the mediation without much emphasis on the quality of that settlement. Is this approach to mediation truly meeting the interests of the clients? If not, what changes might be made? Is it time for commercial mediators to offer a more client-centered process involving multiple sessions?
He cites the work of Michaela Keet and Heather Heavin, my co-authors on our book on litigation interest and risk assessment techniques.
In our book, we encourage mediators and mediation programs to use a planned early two-stage process when appropriate. Family mediation often involves planning for more than one mediation session, illustrating benefits of a two-stage approach.
Risks of Unplanned One-Session Mediations
As Rick notes, in many practice settings, there is a strong norm of conducting mediation in a single session with the goal of settling in that session if at all possible. Many lawyers and neutrals worry about letting potential agreements “get away” if not nailed down in a single session.
In cases conducted following the one-session norm, people sometimes endure marathon mediations lasting all day and well into the evening. Even when mediators avoid intentionally exerting pressure, if everyone assumes that mediation normally should involve only one session, parties can feel pressed to settle. They may not have the mental resources to consider the options carefully and so they may settle just to “get it over.”
Parties may agree to settlements that are overly generous because they don’t have the time, resilience, or information to analyze their cases more carefully. As a result, some parties may have buyer’s remorse, leading them to renege on agreements, perform them inadequately, file suit to rescind agreements, or even sue mediators or their lawyers for pressuring them to settle.
These problems may be reduced or avoided if everyone plans for two possible mediation sessions. People now sometimes have unplanned two-session mediations where they push hard – and unsuccessfully – to settle in one session and then mediate again later. While this may eventually produce good resolutions, it does not provide the benefits of a planned early two-session mediation process – being better organized and more humane.
Planning for Two-Stage Mediation
A two-stage mediation process is not appropriate for every case but lawyers should consider asking for it and mediators should consider offering it as an option when appropriate. This would be especially valuable when mediators and lawyers do not plan carefully before mediation sessions. Even when people do prepare carefully, they may learn things during mediation that significantly change their perspectives, and so they still may not feel ready to settle in a single session.
In a two-stage process, the first session should be scheduled to occur soon after the parties have done some basic fact-finding and legal research. They should do some basic discovery but not all the discovery they would need to go to trial.
At the first session, the parties may be ready to settle. If so, a second mediation session would not be needed. If parties plan for the possibility of a second session, they are less likely to feel pressured to settle in the first session.
If people need more information and time to be ready to settle than in a single mediation session, mediators could use the first session to help them identify what they would need to be ready. Based on an initial mediation session, the lawyers could plan “homework” before the second session to (1) complete specifically-needed discovery, (2) obtain expert opinions, narrowly-focused arbitration awards, or court rulings on critical legal issues, and/or (3) consult with important individuals or entities relevant to the dispute.
If the parties participate in a second mediation session, it is likely to be a lot more productive, efficient, and consensual than typical mediation sessions. People would not need to repeat all the work from the first session and they could start by focusing on the pivotal issues. The parties should be less likely to need marathon mediation sessions or settle just to “get it over.”
If people travel great distances to attend a mediation, a two-session process can be problematic, especially for busy clients. People can be creative in arranging participation by phone or video and scheduling some time for lawyers and mediators to meet without the parties. For example, parties might participate remotely in some but not all of the first session and then everyone would convene in person for the second session.
To maximize the benefits of two-stage mediation, participants need to change their expectations about how mediation would work. Mediators would provide information to parties and lawyers when they schedule mediations – and preferably well before then. Indeed, they could post information on their websites explaining the process.
Since the presumption in this approach is that parties will not settle cases during the first session, it can be scheduled to last a specified time, such as a half day. This avoids the need to block out a whole day and to be prepared to mediate late into the night if necessary to nail down an agreement. When people schedule the second mediation sessions, they can have more confidence about the prospects for settlement and the amount of time that would be needed.
Risks and Benefits of Two-Stage Mediation
Using a two-stage approach creates a risk that in some cases, parties may not settle in one session simply because of the expectation of a second session. In that situation, parties might (or might not) spend some extra time and money in mediation for an unneeded second session.
On the other hand, a two-stage approach can increase quality of the process and outcome. When parties participate in a second mediation session, they are more likely to have clear ideas about what they are and are not willing to agree to. As a result, they should be less likely to have “buyer’s remorse” or renege on mediated agreements.
Using a two-stage process also should reduce problems from mediators providing their own assessments and pushing too hard to settle. Instead, during the first session, they can identify critical uncertainties and potentially unrealistic assumptions and encourage people to check out their assumptions before the second session.
Many savvy parties would be happy to take a little more time before resolution to get a more deliberate, predictable, and possibly more efficient process. Some mediators would really enjoy managing a two-stage process and providing these benefits to clients.
In the wake of the pandemic, some parties, lawyers, and mediators have extended this logic by using multi-stage mediation processes, which I described in this post.