I'm a mediator, and I've been one pretty much since
mediation has existed. When I was trained, in the olden times, mediations were
scheduled in 2 - 3 hour sessions. If they lasted longer and the parties were
making progress, the mediation was reconvened another day, when the parties
were fresh. I've found that most cases, if they're going to settle, can settle
in 2 - 3 hours. Yet I find that mediations these day seem to be expected to
last 6 - 8 hours or more. So what's happened to those reasonable-sized
I actually recently had a mediator say to me recently that her mediations
frequently go until midnight. She was quite shocked when I responded that this
one would not do so, and that, in fact, I had an appointment in my office at
I started wondering. Am I just a curmudgeon?
Then I took my mother car shopping. It was while cooling our heels for hours
waiting for the contract to show up that I realized why I absolutely despise
the new, trendy marathon mediations. It's because the employee is just like a
car buyer. The employee is either alone or with their one lawyer. The other
side is there with a lawyer, an HR rep, maybe a couple other folks. Management
is the car dealer. The mediator in the marathon is the salesman, trying to get
the sale done. The marathon sale is a pretty nasty sales technique, used by car
dealers for years successfully, and for one reason - to get the upper hand with
Here's why I am going to continue to object to mediations that go beyond 3 - 4
Exhaustion: Just like the car buyer, the marathon process wears the
employee down. They get careless, restless. Ready to take anything just to get
out of there. They maybe have one lawyer, who is also tired. Management has an
entire firm, just waiting by the phone and their computers. Possibly an
insurance adjuster too. They can have multiple eyes on draft agreements to
catch errors, even at midnight. Employees and their lawyers don't have that
kind of backup. There is absolutely nothing beneficial to employees that can
happen after 6 or 8 or 12 hours of mediation in one day. It's best to break it
up into smaller sessions so everyone is refreshed and thinking clearly. I even
wonder - is a mediator who allows a session to go that long meeting their
ethical obligations to the employee? Don't they have a duty to make sure the
parties are capable of clear thinking?
Abuse: Marathon mediations have an incredible ability to abuse the
employee through time wasted, trickling out one by one all the reasons the
employee sucked and deserved to be fired. They become shell-shocked, even
depressed. They're already tired. The doubt creeps in.
Expense: Most mediations are borne half by the employee and half by the
employer. At several hundred dollars an hour, the employer can make an
already-poor former employee shell out dollars they can't afford with no
intention of ever offering anything. If there's no offer after an hour,
something is wrong in my opinion.
Here's how the marathon mediation starts. The employee gives an opening that
lasts about five minutes. The mediator asks lots of questions. Lots. Of.
Questions. This, despite getting a detailed position statement ahead of time.
Then the employer goes, and speaks for half an hour. More questions.
Then comes the caucus. The mediator spends an hour with the employer side, then
comes back without an offer. He wants to go over some facts instead. He'd like
to spend an hour or so with us, then go back to the employer. That's when I'm
certain the mediation is going to be a marathon.
Here's how I stop it from being a marathon. I ask if there's an offer on the
table, and he looks at me funny. I say that, unless I have an offer over a
specific amount in the next 30 minutes, he can call it an impasse. The mediator
acts like I'm being the bad guy. But because I'm not exhausted, I'm not easily
swayed. If, after an hour and a half, there's no offer (and by an offer I don't
mean $500 or even $5000), it's time to go. Any mediator worth their salt can
get an offer from management in an hour and a half.
I place a firm time limit on the mediation. In my case, I have a pretty
immovable time deadline to pick the kids up from school. But it can be anything
- a meeting scheduled afterwards, dinner plans, anything that keeps you from
being persuaded to lapse into the marathon. Sure, if we're almost settled and I
just need a few minutes, I can usually make arrangements to stay a bit later,
but if we aren't close, then at the deadline we need to impasse or continue to
Another thing I like to do is try to start negotiating even before the
mediation. I like to see how close we can get before mediation so we're not
starting from scratch. Then we can tell the mediator where we left off. If we
impassed before mediation, the ball is almost always in management's court,
since I always, always make a counter to any offer I've received. That way, the
mediator can start with management. I don't understand why some management-side
attorneys don't want to talk before the mediation when they aren't paying
someone by the hour to talk to me. But most will gladly talk beforehand.
From now on, I'm going to tell the mediator right up front my time limit for
the mediation. I'm going to tell them why. I'll even tell them about car dealer
tactics if I have to. If we can't resolve it in that amount of time, then we
can break and reconvene another day. Just like in the olden times.
So, do you agree with me, employee-side lawyers? Are marathon mediations bad
for your clients? What about management-side? Do they actually benefit anyone
but the lawyers and mediator? Are there any mediators out there who still limit
mediations to no more than 3 - 4 hour sessions? If you think I'm wrong, I'd
love to hear that too.
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
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