We’ve all been there — mediating a contentious dispute all day, trying to resolve it in a mediation session but to no avail. The parties and their counsel depart the session frustrated, disappointed, and perhaps a little angry. Is this the end, leaving the parties stuck with the risks and costs of more litigation? Most mediators would emphatically say no. Mediator follow-up has become a standard part of mediation practice in California and elsewhere. Many mediators advise the parties even before they leave a session — even if the obstacles seem insurmountable — that they will be contacting them shortly to discuss the status of the dispute and their options.
In many cases, upon further reflection on the risks and expense, or perhaps with a respite from bargaining, the parties’ calculus changes and the door opens to resolution. Sometimes a corporate party needs to consult others internally before making a move. In other cases, the parties simply don’t have enough information — perhaps a needed expert opinion, a key witness deposition, or a court’s ruling on a key issue.
Of course, in some cases the parties are not receptive to a mediator contacting them after a session, perhaps regarding the mediator as an unwanted pest on a fool’s errand. Mediators have thick skins, however, and find persistence is a virtue, particularly where the mediator sees potential avenues for resolution the parties don’t or won’t recognize.
Timing, technique, and focus of follow-up vary with the mediator and the type of dispute. In a small personal injury case, for example, a few telephone calls may yield a resolution, while in a complex commercial dispute repeated follow-up may be inherent in the management of the mediation and even agreed upon in advance.
Tips for advocates: if you anticipate that a dispute may not settle at one session, be sure to ask the mediator about follow-up — when, how, with whom, and if there may be a cost attached. Some mediators provide follow-up at no cost beyond the initial fee; others charge a fee depending on the amount of time incurred. There are some cases can’t be settled no matter how much post-session efforts are made, but never let that happen because you didn’t try — with the help of mediator follow-up!