Today is Not the Longest Day of Your Year

Officially, June 21st is the longest day of the year - on the Gregorian Calendar. But, if you’re like me, then there are plenty of other days that feel, painfully, even longer.

A few weeks ago, I had the opportunity to check an item off my personal Bucket List - a Rim-to-Rim hike across the Grand Canyon. And while I knew exactly how long a distance it would be (25.5 miles, thank you very much), when I would start (3 AM - not again, thank you), and approximately how long it would take (12+ hours, finishing in the afternoon Sun), I still felt, at the tougher times, like it was never going to end.

In those early, pre-dawn hours, I realized that a long and arduous journey such as the one I was on - to cross the deepest chasm in the World - was similar in many ways to the journey clients make crossing the divides in their disputes. And, in both instances, while finishing the journey is filled with relief, how one finishes matters tremendously as to whether it was a successful hike or a failed mediation.

In both cases, there is a prescribed method for reaching resolution - Five Stages (yes, just like overcoming grief!) and the end starts off perfectly clear, becomes fuzzier as you go, then re-appears, clear as day - as if it had been there all along.

Stage One: Convening the Mediation

Sunset, the Night Before

As Lao Tzu famously said, “[t]he journey of a thousand miles begins with one step.” Here, for me, it was a groggy step as I awoke at 2:30 AM and had to decide if I was actually going to do this. Weeks of preparation and training had gone into this and yet, I felt hesitation about the actual hike. This is similar to what many clients report feeling as they approach a mediation session. While they know the dispute must be resolved and, intellectually, they know that mediation is the best chance for resolution, nonetheless, there is a hesitation about actually engaging.

This is why the beginning of a mediation is not for the purpose of actually beginning the negotiations. Rather, the beginning of the mediation is the work to ensure that all of the relevant parties are willing to engage in mediation. That means both ensuring that the parties at the table and those not at the table but who have a critical voice are able and willing to move to a settlement. Sometimes this work has been done by counsel and the litigation process while other times, meetings of the mediator with counsel and their clients may be required to convince a party of the benefits of mediation.

Rather than selling mediation as an easy fix, the convening stage is when the parties and other key participants become willing to sit at the table to begin the discussion that, hopefully, will lead to success.

Stage Two: Opening Session

The First Bridge on the Trail

After the initial steps from the comfort of my hotel room and still warm bed, the reality of what was about to transpire began to set-in for me. I spent several hours hiking downhill before I came upon the first bridge crossing. While it provided comfort that I was well on the way, it was obviously not across the Colorado and yet it was no short distance itself. This hike was not going to be something I could just ‘suck it up’ for and ‘power though.’ Nonetheless, I had a sense of safety in knowing that I could do this and hope that as the Sun rose, it would be enjoyable - until the heat settled in, anyways.

Similarly, an opening session serves two purposes. One, is to provide the parties with comfort around the process and the mediator - getting to know what to expect from the next few hours, or beyond, in terms of the mediator and the logistics of a mediation. Two, is to have the parties understand what will be happening, in terms of the specifics, such as that you will be exploring a risk analysis of the dispute, the likelihood and amount of recovery, and the private communications that the mediator will and won't be sharing - expecting in return a discussion of a realistic assessment of what they expected to pay and receive. In short, the opening session should provide the participants with that sense of safety and hope about the mediation and its prospect for settlement to allow them to speak candidly with the mediator.

Stage Three: Communication

The Colorado River

Parties often find the Communication Stage to be the most pleasurable because it is when they get an opportunity to tell their side of the story - to explain why they hold their position. In a well-functioning mediation, this means both in front of one another and in separate, private meetings.

There are several ways to get the parties to talk. First, a series of open-ended questions with engaged and active feedback allows the mediator to be a strong listener, seeking out clues about what is driving the individuals and, in turn, the dispute. As an alternative to a deposition or cross-examination in court, this takes skills beyond a lawyer's traditional skill set as it requires delicate questions, properly posed to keep the conversation going while skillfully?continuing to build credibility with the clients. A second way is to ensure that the parties have an opportunity to air their concerns and perspectives, so that they can walk away certain that they have been heard and that the mediator understands their side of the matter.

Many times, there are parties who are looking for nothing more than to ensure that they are being heard in the process and surprisingly this, alone, can resolve a large portion of many disputes. A well-run Communication Stage will reveal hidden values and interests. This is why it is important to spend sufficient time in the Communication Stage, both to surface all sides of the conflict and, in short, give the party that requires it, their ‘day in court.’ When a mediator is too quick to cut to the chase and move out of the Communication Stage and into negotiations, this can cause problems that will remain as roadblocks to reaching a settlement.

Stage Four: The Negotiation

The Climb Back Up

The Negotiation Stage begins the heavy slog of chipping away - step-by-step - at the bargaining dance between the parties. Similar to beginning the uphill portion of the hike seven hours in, the Negotiation Stage can feel painful as it seems like the point of the mediation and yet it doesn’t begin until the end!

The exact steps taken will be different in every case and the success of a mediator in bringing the parties closer together will be dependent upon the mediator's ability to hear the concerns of the respective parties underlying their statements in the Communication Stage. Only upon this understanding that is a combination of listening for those underlying concerns and being able to call them out to the parties, will a mediator help the parties make progress in the Negotiation Stage.

While flexibility and innovation are often praised attributes in a mediator’s toolkit, these will only work to allow the parties to come together if they feel that their underlying concerns have been addressed. Thus, the ability to think creatively about how to solve a problem is only half the battle, with the other half dependent upon listening in the Communication Stage.

From the mediator’s perspective, this can often feel like a mighty juggling act of flexibly balancing both the stated and unstated concerns of the parties and the problem-solving innovation required actual deliver a settlement with terms that can be agreed to - but that’s the fun of it!

Stage Five: Closure

Looking Back and Set to Begin Closure

Officially, the purpose of the Closure Stage is to finalize the agreement. This could mean a simple agreement, or it could include a Memorandum of Understanding laying out the many intricate steps required to make a deal happen. However, there are two key things that need to happen in this settlement, whatever form they take - 1) both parties must make a truly informed decision - one informed by the alternative options available and a desire to take this deal despite those alternatives and 2) everyone must be able to truly deliver on the commitments made.

Finally, in addition to the Settlement Agreement/Memorandum of Understanding that should be signed by everyone for commitment purposes - beyond legal purposes - there should be a very clear understanding and acknowledgement of who will be handling each piece of finalizing the deal, such as releases, funding the settlement amount, dismissal(s) of the lawsuit(s), etc.

Once properly completed, the Closure Stage will allow everyone to leave the room knowing that they can say goodbye to this phase of their lives and move on to more important work. For me, for example, that was returning home to a very long night’s sleep and then seeing my son ‘graduate’ from Little League after finishing on the championship team!