Mediation Minute

Buzzer Beaters and Clock Management in Mediation

March 3, 2020

As we head into the annual college basketball tournament season, it’s a good time to discuss “clock management” in mediation. In a two-party case this is not hard. There are only two private caucus rooms. More challenging are multi-party cases and multiple “rooms.” I have a few thoughts for parties and attorneys, and some insight into my process.

Don’t be in a hurry to get into private caucus, particularly when there are a large number of parties. Lawyers more or less default to this because in some respects it feels more comfortable; you aren’t staring the opposing side(s) in the face and you’re protected by the closure the private caucus provides.

I think lawyers, if you will permit the metaphor, miss an opportunity to do a little dribbling behind the three-point line. If you dribble beyond the arc in basketball, you may draw out a defender. Correspondingly, if you spend some time chatting with the opposition in a joint session, you may get some insights you would not otherwise get.

I’ve had parties learn that a counterclaim was forthcoming, that someone else is responsible and not joined, or that the guy who ran the company (and created the problem) was no longer around. As a mediator. I like to keep the parties in joint session. I ask some open-ended questions to engender conversation—sometimes, to get the parties to see they are not that far apart or that the other side isn’t completely nuts (which backfires when one side is nuts, but hey, there are no guarantees here!).

Sure, sometimes people get edgy in joint session and go stone silent, but that’s simply a function of their experience and being outside their comfort zone. Sometimes, there’s a real opportunity for conversation and a breakthrough. Invariably, someone reveals a misimpression, some bad information, or suspicions exist and are clarified or what is flatly wrong is then politely rebuked.

In a joint session, lawyers don’t like to hear the clients talk because, I suppose, of the risk that they tell truth (in lawyer-speak, they say something “dumb”). But even if the clients remain silent, lawyers talking to lawyers is okay too; it’s just one rung removed from the client’s view, and in real time, so as a mediator, I like the joint session. I can also get a peek into the relationship between the lawyer and client and client control issues may surface, which are useful to know.

The other timing issue has to do with time spent in private caucus. I’m very mindful of the fact that while talking to one group, there are people in another room “unsupervised,” doing and saying who knows what. You have to build some trust and confidence with the participants by listening and sitting in one spot, but as a mediator you have to keep the balls in the air; for me, that means moving between the rooms at a decent clip whenever possible.

Every mediator has heard glum stories from a lawyer lamenting they were left in a room for hours and ignored, only to the hear the mediation ended with nary a chance to be heard or make a solid offer. If I keep the pace up between the rooms, the parties tend to feel like they’re being looked after, and it forces each side to think about the next move. I have my own shot clock, so to speak, and I keep an eye on it.

Finally, like any coach, I am mindful of total time remaining. Most mediations really start at 4:30 pm. If there are hard deadlines, I make the shot clock shorter and I usually make sure everyone knows which room or person has the hard deadline, unless the short timer refuses to permit the disclosure. Failing to disclose your time limitations early in the process can create some hard feelings with the other side if they only learn late in the day that one side is leaving early (“We came this far!” is the cry).

As my engagement letter points out, many mediations run past ordinary business hours, and so I strongly encourage the parties to have flexible schedules and to avoid the proverbial 3:30 pm flight home. Be mindful of the shot clock and the game clock, and make sure the mediator remembers it as well.