Ask any mediator and they’ll tell you that being the third wheel in a party of (at least) two is not always easy. It’s their job to get the party started and keep the party going, even when the ones they showed up with might be tired of dancing.
On occasion for mediators, that means dancing until they almost drop.
“Sometimes, mediations break down or maybe they settle before lunch,” said Tom Traxler of Carter, Smith, Merriam, Rogers & Traxler in Greenville. “Sometimes they go into the night. When I leave the house in the morning, I tell my wife, ‘I have a mediation today and I will see you when I see you.’”
Suppositional overtime notwithstanding, facilitating another’s dispute and helping to fashion a resolution through one’s acute legal prowess and sheer tenacity can have its upside. While part of an adversarial system, many say that mediating is more collaborative and allows for more creative legal remedies than those found in a courtroom.
And rather than fighting for a specific cause or advocating for a specific outcome, mediators are looking to get all parties on the same sheet of music—even if they aren’t singing the same tune.
“It’s very uplifting to help people solve a problem and see the sigh of relief that it is finally over,” Traxler said.
Of course, exactly when the after-party can begin is anyone’s guess.
Dancing their troubles away
One key to getting mediation off on the right foot is being familiar with the routine but preparing for improvisation.
“That can mean a lot of reading and a lot of talking to the lawyers beforehand, and it can mean early morning work, but there is no typical day,” Traxler said.
As a former plaintiffs’ attorney whose dance card now stays full with alternative dispute resolution, certified mediator Asa Bell of Raleigh said that one way that he helps choreograph a smooth conciliation and save negotiation time is to request a pre-mediation statement from all parties to help identify and target issues.
Similar to dancers in sync, communication, trust, and flexibility are paramount to successful mediation. Bell said that developing a rapport with each party can help guide them (albeit slowly sometimes) toward the center of the dance floor.
“You seek to allow the process to work whatever amount of time that takes,” Bell said. “You really don’t do justice to the process if you rush the process.”
Traxler agrees, saying that meeting with each side, exploring common ground, and discussing their stance he can help foster trust and solutions. He fully subscribes to Bell’s philosophy regarding due diligence and patience, and is no stranger to working all night long.
“We push through however we have to because momentum can be lost if we adjourn,” Traxler said. “If parties can’t talk, they can’t begin to settle. Sometimes things take time to ripen.”
It can be a slow dance
Certified mediator Steve Dunn of Miles Mediation in Charlotte has orchestrated hundreds of settlements in his day and said that despite the trials of harmonizing opposing parties until the proverbial curtain closes, mediation offers the joys of lawyering without the ongoing responsibility for the case.
But mediation day is every bit as “tiring and taxing” as taking a deposition or being in trial, Dunn said, because few cases, predictably, “have an easy and obvious solution.” And while it’s business up front for mediators, constantly waltzing from room to room and interposing themselves into the affairs of another, the parties can party in the back while spending half the day “just chilling.”
After litigating for more than 20 years, Dunn said that he enjoys the ability to control his own calendar, though he can no longer anticipate leaving the job when court adjourns.
“The latest that I’ve gone is 3 in the morning and I’ve had several go until 2 in the morning,” Dunn said. “But an important part of the job is you’re the person who has got to cheerlead that thing across the finish line. And if that means going late, we’re going late.”
Bell said that he once believed that one should say what they mean and mean what they say, a stance that has since been refashioned.
“When I began practicing, I realized that negotiations are a dance,” Bell said. “The process of mediation … helps walk the parties through this dance.”
Sometimes, that means dancing the night away.