Matrixmediation's Blog

How Long Should a Two Hour Mediation Take?

Rodney Romano, Matrix Mediation, LLC

Second-rate mediator answer: two hours.  Correct answer: as long as it takes!

            Typically, circuit civil mediations are scheduled in two hour, half day and full day blocks. As a trial lawyer, I have experienced many mediations in which the mediator called time based on his artificial deadline and the case which would have settled with a little more time, patience and tenacity wound up in an impasse; then both sides spent thousands more in costs, only to settle the case on their own prior to trial.  The parties need to have their schedules cleared and not be in a rush.  The bigger problem is usually the mediator, who I believe should be committed to giving each case his/her best effort. Certainly it is important to think about how much time is needed for a particular case and to be considerate of the cases that are scheduled after yours.  However, sometimes despite everyone’s best scheduling efforts, the case needs to go overtime, and I think the mediator should stick with the case until it settles or all options are exhausted.

            Each mediation is a custom job and there are many variables that can make the process completely different for cases that appear similar on their faces.  As soon as summaries come in, a good mediator begins to design the mediation.  The mediator should carefully listen to and observe the participants during the presentations and continue designing the appropriate process for that particular case and the people involved. I have found that oftentimes more information can be discerned by what is not said than by what is said.  Then, when the parties break into caucus, the mediator has a negotiating plan to recommend (keeping within the ethical parameters required of certified mediators).

            I recently had a very significant personal injury case with facts similar to hundreds I’ve conducted before that resolved inside of two or three hours.  However, this case took nearly seven hours and the parties were at the brink of impasse halfway through and settlement seemed hopeless.  Some of the problems included the unusual and confrontational negotiating styles of the two parties, strong distrust between the parties and particularly extensive and detailed arguments on both sides regarding causation and damages.  However, rather than impasse, the parties agreed to be patient and to try some creative exercises which led to settlement in the late hours of the night.  Afterwards, each party confided that they thought the case settled exactly for the amount they thought it should have. If I had called time when the case was scheduled to end at 5pm, the case, which had a plethora of experts on both sides, would have impassed and many thousands of dollars and dozens of hours of time would have been spent before settlement discussions rekindled weeks or months later. The parties’ willingness to stay until they had a chance to work every angle led to the best outcome and the lowest cost for all parties.  The time and money they saved with their extra effort was easily many times the few extra hours they paid in my fee, arguably making the mediation some of the best cost money spent on the case.  They walked out the door feeling that their time had been used productively.

            Sometimes parties don’t want to schedule more than two hours for fear they’ll be stuck with a higher minimum guarantee even if the case impasses quickly; that’s a very legitimate concern, especially in today’s economy.  Here are a couple of practice pointers:

1. Talk to the scheduling staff.  They are trained and experienced in helping you estimate the time you need while managing your costs at the same time;

2) Think about your own style.  If your openings take an hour, remember the other side is entitled to a chance as well and factor that in.  Also, when there are multiple parties, two hours is often unrealistic.

3) Consider the needs of the non-lawyer participants; some need to go through a meticulous process more than others;

4) Consider whether there will need to be ”negotiations within the negotiations,” such as when multiple defendants are negotiating their contributions to settlement or multiple plaintiffs are negotiating their apportionment of settlement proceeds.

5) If you think the case will either impasse quickly or go for hours, consider scheduling the last time block of the day with a mediator who will continue for as long as it takes; that way, you make the minimum commitment but know that you have the entire night if needed.

            Matrix Mediators and staff know the challenges of running a law practice and our mission goes beyond simply providing a quality mediation.  We strive every day, in every case, to contribute to improving the quality and efficiency of your practice.  If you are a Matrix client, thank you for trusting us with the mediation of your cases; if not, we hope you’ll give us a try and we are confident that you’ll be glad you did.

 Rodney Romano, Esquire/Mediator

 Matrix Mediation, LLC