The Sleep Test and Mediation


I’m feeling a trend out here in L.A. in the world of mediation. More and more of my cases are not settling on the day of the mediation hearing–which creates a lot more work for me. But of those, I’ve had 8 cases that have settled within days later. So what am I to conclude? In my family, when there are big decisions to be made, I always advocate “the sleep test”. Oftentimes, clarity comes only the morning after all aspects are considered. In mediation, this translates into an angry or disappointed client calling their lawyer the day after the mediation (and the lawyer calling the mediator) to beg for a way out of the litigation. When parties have committed to participating in a mediation, it is almost always with the expectation that the case will resolve in a way they find favorable. Few clients truly want to go to trial and few lawyers are cavalier enough to recommend that their clients reject a reasonable offer for the promise of a better result at trial. It is, then, only a question of getting to “reasonable”. I’m wondering whether there is a way to prime the clients for settling on the day of the mediation, without the “sleep test” by their advocates fully preparing them to make difficult decisions in real time? On this one, I don’t have the answer, but I will sleep on it and get back to you in the morning.

Jan SchauComment