It’s not uncommon for mediation participants to ask, “what’s taking so long in the other room?” I think the answer is simple but maybe not obvious. Litigation distances the client from the problem. The question, “What should I accept or how much am I willing to pay?” is not one the litigation process seeks to answer. The client is disenfranchised from the conflict because during litigation, the attorney drafts the pleadings, motions, and responds to all of that. Apart from assisting in records production and before any deposition testimony is requested, the Plaintiff has very little to do. The lawyer operates the machinery of the litigation. Neither party has to think about the settlement value of the case, nor even think about making a decision while the litigation proceeds. Defenses are asserted and investigated by the lawyer. The defense lawyer does the heavy lifting.
Nothing in the litigation really gives them ownership or agency over the decision they will be asked to make on the day of mediation. This psychological distancing manifests itself at the start of mediation when it seems like not much is happening. But in truth both sides are reacquiring intellectual and emotional ownership over the case. For claims professionals and litigation managers the reality of decision–making is clear because it’s their job. But for ordinary folks the task of evaluating or handicapping their case is wholly foreign to them. Making a settlement decision is a new thing. During the first couple hours of the mediation the parties are getting comfortable with “taking the wheel” of the deal. It’s like renting an RV for a trip. You need to get comfortable behind the wheel in the parking lot of mediation before taking that RV on the highway. Effective mediation necessarily requires a party to shift from passive-observant of the litigation process to an active decision-maker. So, it makes sense for the mediation to start out in first or second gear for a bit and before everyone gets comfortable at higher speeds and quicker and harder decisions.
Lawyers can help clients transition to acquiring ownership by making clear that mediation will be a part of the process down the road. Position statements and premediation conferences help the process. Role-playing helps. The lawyer needs to let the client know early in the life of the dispute that at some point the steering wheel will be in their hands and ask the client questions to ensure they have the information they need and the strength to make a hard decision.