The TV series Fairly Legal, which recently completed its first season, bears about as much resemblance to actual mediation as most lawyer shows bear to actual law practice. I have no problem with that; the show does not purport to be a documentary. It is entertainment. At least one idea in the show, however, appears more realistic than actual mediation practice. That is the idea that mediation should be viewed as an ongoing process. Parties on TV seem to understand that it might take three or four sessions to resolve a dispute. Before they can do that, they might need to express their feelings by walking out the door. Or they might need to undertake some investigation of facts disclosed during an initial session, to prepare a response. Or they might need time to think about what occurred at a mediation session before they can come to terms with it. Although they sometimes have to be coaxed back to the negotiating table, they usually seem to understand that they need not view mediation as a failure just because the dispute is not resolved in the opening session.
On TV, it seems that one of the parties always walks out of the first mediation session after about five minutes, and the mediator then has to go running after them, engage in some investigation herself, and catch up with them later in their offices or on the street. Most of these depictions of mediation practice do not happen in real life: I always discourage parties from walking out after five minutes; I don’t barge into people’s offices (I do follow-up by phone); and while I sometimes do a little online research, I don’t go hunting down additional evidence for the parties. On the other hand, it would be refreshing if real life parties and mediators saw mediation as a continuing process, instead of how they often view it, which is as a one time all-day or half-day event. At the end of the day, the parties either reach a settlement of the case, or return to battling it out in court. If they don’t settle, they still might have laid the groundwork for a settlement they will either reach on their own, or perhaps with the assistance of a judge or another mediator just before trial, but they usually don’t expect to have an ongoing relationship with the mediator to help them continue that process.
While the parties might expect the mediation to be a one shot deal, there are a lot of things that can prevent a deal from happening in the first session: somebody may not be well-prepared, somebody who should be involved may fail to attend, one or both sides may decide they need more information before they can make a settlement offer, a party may receive information during the course of the mediation that they need time to process. When any of those things happen, and we cannot work around it, I try to get the parties to agree to return for another session in a week or a month. But settlement momentum is sometimes lost during that break, and the parties sometimes get bogged down in wasteful litigation activity. Offers sometimes come off the table, and parties may move farther apart. If instead parties had the expectation that the first time they meet their mediator–just like the first time they appear before their judge, or the first time parties in counseling meet their therapist–might not be their last, they might not view the initial session as the make-or-break activity that is often the case now, and they might be less likely to take actions harmful to the settlement process during the time between sessions..
A cynic might point out that of course it is in the interest of mediators to encourage parties to come back for multiple sessions. And that might be true, just as it is true for psychiatrists or ski instructors. But I’m also quite happy to see a case resolve in a day or less. In a lot of cases, I know that the first session is all I’m going to get, and I will make every effort to get the case resolved in the time we have. What I don’t like to see, however, is for people to give up on mediation just because they did not succeed in settling their dispute in the first meeting. In some cases, there are obstacles that can make it too difficult to do that, and the parties just need to come back and give it another try. The settlement track should stay open, and parties should be willing to continue as long as negotiations are productive. A persistent attitude will prevent the loss of settlement momentum.