For attorneys and their clients there’s often much unproductive time during mediation. When the mediator is meeting with the opposing party, the attorney and client are often merely waiting to react to the next offer, and little productive work is being accomplished. Meanwhile, the client is being billed for the attorney’s time. However there are ways for attorneys and clients to be more productive when the mediator is with the opposing party. Further there are suggestions the mediator can make that allow the attorney and party to use the time productively when the mediator is meeting with the other side.
Perhaps the best way that an attorney can insure that the initial mediation time is used productively is for the attorney to counsel the client prior to the mediation so that less time is spent dithering on goals. Prior to the mediation the attorney and client should have a firm understanding of the issues where the client is willing to be flexible, the goals the client is willing to forgo in order to reach a settlement, and the goals that the client is willing to go to trial to achieve. These last set of goals–what I might call my client’s line-in-the-sand–need to be realistic; however, these are the goals that the client should not compromise on to achieve settlement in mediation (unless factors during the mediation create a good reason to forgo these goals). Coming into mediation knowing which goals can be negotiated away and which goals cannot makes the mediation much more focused and efficient.
For the mediator to make the mediation more efficient it helps to anticipate what issues are going to arise in the next round of conferences. For example if I am mediating a divorce case in which one spouse is clearly entitled to permanent periodic alimony and the other spouse is resistant to offering permanent alimony, I might ask the supported spouse to consider making a proposal for lump-sum alimony or a super-majority of the marital estate while I meet with the other party. If I am mediating a custody case and it is clear that one party has a much stronger claim for custody, I might ask that party to spend time considering what concessions he or she might make in order to get the opposing party to concede custody. Having each party considering creative options and solutions while I am meeting with the other party enables the mediation to proceed faster and uses the attorneys’ and my time more efficiently.
If some new issue arises during mediation I might take a short break to meet with the other side, let them know this issue has come up, and ask them to think about solutions while I resume meeting with the opposing party. This way they are not blind-sided by the new issue, and have time to think about and offer solutions on this issue when I meet with them next.
Finally, if it appears the case is likely to resolve in mediation, an attorney can use the time the mediator is spending with the other side to begin drafting a formal agreement. Much of the agreement–the boilerplate that begins and ends the agreement; the provisions that the parties have already agreed upon–can be drafted before a full agreement is reached. Typically the final part of any mediation involves the mediator going rapidly back and forth to iron out minor details. By allowing the mediator and other party to review the preliminary draft agreement during this stage of the mediation, it allows the other party to note any concerns in the draft language. It also avoids the situation in which the mediator has the parties reach an agreement in principal only to have the agreement fall apart or have the parties and the mediator spend substantial additional time negotiating minor details in the formal agreement’s language.
By drafting a formal agreement during the mediation, the time between reaching an agreement in principal and having an agreement ready to execute is typically under thirty minutes–sometimes as few as five minutes. Given that attorneys and clients tend towards exhaustion as mediation proceeds, reducing the time needed to have a formal agreement ready is often the difference between leaving mediation with an executed agreement and leaving mediation with numerous loose ends to be resolved–and potentially having the agreement fall apart.
Even though it is allowable, it is hard for clients to understand why they are being billed for sitting-around time. Doing productive work while the mediator is meeting with the other side makes billing for this time much easier for clients to accept.
