What’s going on over there?
I am often asked questions akin to, "What's going on in the other room?" The "other room" is your counterpart in the process of mediating. Sometimes the question is asked just to make sure the process is sailing smoothly and that we aren't about to hit any shoals. At other times, I know it is motivated by concerns about the pace of progress. Either way, it is a good question. While confidentiality and privilege limit what mediators can share, here are some examples of what may be going on in your counterpart’s room. You have, no doubt, witnessed these things in your own room from time to time.
The lawyer is likely trying to do his or her level best trying to represent and advise the client well. This can take time. Things that haven’t been given much weight before the mediation may take on unexpected importance during the conference, and be grappled with unlike before. This too can take time, even though you may think it should have dealt with differently earlier, perhaps before the mediation. The person who has the most influence in determining how negotiations and the conveying of information progress wants to try it first "their way" before they will act in accordance with the suggestions of others. Securing information, analyzing it, and projecting future impacts are important. So too are psychological elements of the process of resolution such as realization, understanding, acceptance, and related emotions. All these things take time to resolve.
This is just some of what may be going on in the other room. While you may have questions about analysis, speed, proposals, mood and dynamics while mediating; you can rest assured that the other room probably has the same questions about you.
Richard Lord is a Shareholder at the firm of Upchurch Watson White and Max.
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