For once, I seem to have time. No travel, no trips out, no long walks on the hills. Some zoom mediations, granted, but still much more time. And with that, I find myself reflecting on the significance of time in mediation.

Time is a major feature in mediation. Indeed, we ourselves have promoted the process as a “time-saver”, offering faster outcomes than the full court or arbitration process. Efficiency has been rightly touted as an important component of mediation, and with that the appeal to busy executives and others. But such “efficiency” creates its own pressures and dynamics. Perhaps now is a good time to reflect on those.

First, mediators often feel the pressure of time. Even when there are only two parties, I am often conscious of those who are not with me at any given time, waiting patiently in their own room for the next chance to engage with me and/or the other party. That can be useful reflection time for some, but for others it may simply increase frustration. Multiply that many times for a multi-party dispute.

Early on, people may say things like “I have to be away by 4pm”; or “Can we skip all the to-ing and fro-ing and just get to numbers?”; or “If they haven’t made an offer by lunchtime, they are clearly not here in good faith”. These are all expressions of concern about time. And we mediators end up caught between the desire to do a good job (which frankly speaking can take time) and the desire to deliver an efficient process (and keep the clients happy – especially the repeat ones?).

How might we react? Well, the starting point is to be conscious of these pressures, so that our reaction is at least a deliberate choice rather than an unconscious default. Two areas which I suspect may suffer under the pressure of time are listening, and reflection. Russ Bleemer’s article Listening for Mediators is an important reminder of this. He cites the impact of preparation on listening – namely that well-prepared mediators may feel less need genuinely to listen, because their preparation leads them to feel that they have already grasped the issues. The same is true, in my view, of the pressure of time. We may be tempted to think that we have “got the point” more quickly than we really have. Put the other way, how often do we find that the comment “I think you are saying X, Y and Z – But have I fully understood that? Can you add anything?” will elicit some invaluable insight which we would have missed if we failed to go the extra step in listening?

The same is true of reflection. I often wonder about the extent to which parties in mediation genuinely reflect on what others are saying, or on their own situation and choices. Clearly some do. Others however seem to rush to judgment, and I am sure that the pressure of time contributes to that.

Of course, we can’t simply let mediations go on indefinitely. We have to manage time actively in mediation. There is a fine line between ring-fencing opportunities for genuine engagement with people, while also proactively enabling proper progress.

And I pause in passing to note this: Genuine engagement with people is not just about time. It is also about “presence” – in other words, giving ourselves fully to that particular conversation. The more presence we can give, the less we may find the pressure of time. Presence is about the quality of our listening, perhaps more than the quantity.

Second, time does funny things to people in mediations. For example, our perception of the speed with which time passes differs depending on whether you are with the mediator (in which case it flies by) or waiting for the mediator (when it really drags). And by the way, the concept of “two minutes” (or even five or ten) ceases to exist in mediations. Whenever a party says “Can we just have two minutes to discuss that?”, it should never be taken literally. You can probably double it and add your grandmother’s age for a rough indication of the reality! But it does all make the point that time in mediation requires careful thought and proactive management.

Thirdly, I have come to see the question of time in mediation very differently over the last 10-15 years or so. This has been a result of mediating in contexts which do not need, and indeed would not benefit from or even survive, a typical 1-2 day mediation model. These include dialogue in significant religious, human rights and political conflicts. Here, time is of a different order altogether. In practice, I have found that roughly two years seems to be an appropriate period for a serious dialogue process. This provides both the space for genuine engagement and a wrestling with the issues, as well as consulting with the innumerable constituents and opinion-formers outside the immediate talks, but also a time frame in which progress can be envisaged, achieved and measured. (I am not saying that two years is the “right” amount of time, merely that it has felt about right and worked well in the dialogue processes I have delivered). On the upside, the professional satisfaction at having time to engage seriously with the people and the issues is considerable. On the downside, the challenge is to engender enough momentum to create hope in a meaningful outcome. So time is still a challenge, but a different one.

I have been reflecting recently on the impact that these longer-term models could have on my commercial mediation practice, where the usual (client-led) requirement is for a highly-focused one- or two-day process aimed at a commercial agreement. The current need to mediate on line (I use zoom mainly) has provided a chance to experiment. As an example, I am currently mediating a dispute in which, at my suggestion, there is no single “day” of mediation. I have had zoom meetings with various parties, on different days, and am taking it forward at a pace which seems to fit the context. One of the huge upsides is that no one is waiting for me to finish meeting with another party. Once I have finished a discussion with one party, I arrange a time that will suit the next. My impression (though it’s early days yet) is that this environment engenders greater reflection amongst the parties. There is no “rush to decide”, no rush for me to get to the next meeting. I simply take it forward as and when people are ready.

Maybe there will be some downsides too. Maybe there will be less intensity and focus, and perhaps less perceived pressure to settle. But I suspect that the decisions may be wiser for being more thought-through. We shall see.

Way back when (1994, I think it was), Professor Frank Sander coined the phrase “Fitting the Forum to the Fuss” in order to highlight the need to choose a dispute resolution process which most suited the particular dispute. Back in those heady days, and since, mediation has promoted itself as a highly flexible option. And rightly so. But like so many new breaks with tradition, they can themselves become beset with their own customs, which often morph into rules. “It’s done this way”. I sense that this is really the case with mediation.

So in this time of more time, I encourage us all to do some serious thinking about mediation. Why do we do it the way we do? And what scope is there for further innovation and change?

Answers below please…


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19 comments

  1. Really thoughtful and thought-provoking Bill, thank you for this wisdom, especially endorsing the flexibility of using Zoom over a longer, more managed period than simply replicating the standard one/two day format. “A pace to fit the context.” This should also make it easier for the mediator to focus on the mediation rather than being potentially side-tracked by the need to manage the technology.

  2. A gift of the pandemic, if you could ever call it that, may be that it has triggered the opportunity for many of us to rethink what we do, and how we do it. Until recently, so much time and expense related to mediation was consumed by travel and distance; now, we’ve seen how much ground we can cover, figuratively, at least, with long-distance mediation. This can also be opportunity to reconsider the 10/12 hour/one/two day format we’ve embraced, perhaps, in part because we are so far from home with nothing better to do than maximize, literally, the mediation experience. Maybe smaller, and more frequent, doses of mediation will be the ticket for many of our disputes — less expensive, more immediate and easier to coordinate. I’ve also noticed in my law school teaching life that Zoom also has the potential for more intimate communication than the classroom sometimes offers. Thanks, Bill, for teeing up this subject for discussion on a Sunday morning. Arthur

  3. Thank you Bill for such an interesting and insightful article. This is indeed a time when some of us have the opportunity to pause and take breath and think about what we have done in the past and what we hope to do and achieve in the future. I have long thought that the ‘one size fits all’ mediation (the single day mediation) is a hindrance rather than being helpful to the advancement of mediation. I therefore join you in hoping that this current need for a change of pace and practices results in the future being taken at a better pace and using even better mediation practices and solutions. Keep well. Best wishes Andrew.

  4. Thank you for your thoughtful piece Bill. It is interesting that your experiment with asynchronous sessions appears to have had an impact on the perception of whether time is being used effectively.
    Actually I do see this as a turning point – moving the obsession with efficiency to an understanding that effectiveness, (which often takes longer and requires more investment), is more likely to identify and resolve the real problem rather than the symptoms and to produce enduring outcomes.
    I am hopeful that the reset opportunity presented by this pandemic will help us all to find ways to balance the drive to be
    (and be seen to be) busy with the recognition of the value of reflection

  5. Thank you for this thoughtful post Bill. I’m also experimenting with splitting one-day mediations into two or more days. The arguments in favour of it are, as you say, more time to reflect and also a break from the rigours of the screen during a Zoom mediation. We are in full lockdown in New Zealand right now, so splitting also makes it easier for lawyers to confer with their clients (in different locations) between sessions and for parties who have other commitments at home (particularly parents with children not attending school at the moment) to meet those while still engaging fully in the mediation. But I share your concerns around maintaining momentum (viz the classic problem of parties returning on Day 2 having retreated back into their corners overnight) and focus/intensity. Could you please do a follow up post in due course letting us know how it goes for you?

  6. Hello Andrew, a very good day! If you remember, we met briefly in Delhi.

    Here in India we do not have this constraint of “single day mediation” – be it court-referred or pre-litigation. I personally believe that Parties do not get the feeling of ‘done away with’ until the venting is complete. And certainly that cannot be possible in a “single day mediation”. There are joint family situations in our multi-cultural society here in India. Then in some cases teenaged children who need to be heard etc.
    To my view a Mediation is successful when parties feel they have been listened to by the Mediator. Sometimes, even when there is no ‘settlement’, a line of communication opens up or parties at least shift from their positions. Without giving parties a sense of fair pace, mediation becomes mechanical.
    Hope you are doing well. Thanks. Sangeeta

  7. I really enjoyed reading your reflections, which I found thought-provoking. Thank you for sharing. The notion of genuine engagement and “presence” in the mediation resonates strongly with me, and I am curious about your experience of online mediation and whether remote mediation affects the way you engage with the parties and demonstrate presence. If you have time, I would love to hear more.

  8. Dear Bill, thank you so much for your wise and well-timed thoughts. Mediation gives us tools to approach and design every process individually. We do mediation the way we do and parties want it to be the way they expect it to be. In present-day context we need to be even more flexible we considered we have been before to adjust to new realities and needs. I absolutely agree with your vision of time perception. Parties conceive time differently and this makes us be much more conscious in regard to mediation process. I found working with parties on different days in online-mediation quite acceptable but mediation master’s (your) opinion on this point is very valuable for me. Thank you for sharing! It is time for mediators to think deeply over approaches to online mediation to practice it primarily.

    1. Thank you Fidana. You are right – it is definitely a time for serious reflection on what we do and how we do it. I look forward to hearing what changes have been made in your part of the world.

  9. Thanks Bill. Forgive the delay in commenting but your post resonates deeply with me. I’ve never liked the model of the ‘long day’, perhaps in part because of my own tendency to wriggle and get restless. In the workplace context I dumped whole days early on – a hard morning’s work is usually quite enough for people to ponder on, not to mention being very intense. If we need to, we meet again. And family mediation has never bought into the whole day mediation model, though a lasting settlement may take months or even years to fashion. Perhaps online has given commercial mediation the chance to become more like family, where the mediator works with people for as long as it takes to craft a resolution.

    1. Thanks Charlie. Pleased you enjoyed it. I think the main thing, for me, is that we continue to reflect on the way we do things. If we work from first principles, rather than buying into a particular model or expression of mediation, then I think we’ll always be asking questions about the “how”. That seems much the best way to operate, to me.

  10. Bill, thank you for provoking this dialogue.
    In my part of the world concept of time is a little different from the western world concept. Except in circumstances where relations have totally broken down, time for greetings and courtesies alone could be substantial. Also, we are not used to to the precise, straight-to-the-point method of the western world. So, already, this means however brief or timely is defined, allowance has to be made here for longer. This is one of the first realities that many of us grapple with after our training with the foreign mediation educational bodies. I have found that sometimes Mediation, especially on personal (family, Succession, inheritance, etc.) or community matters, there has to be room for extended dialogue for only then can the mediator grasp the issues sufficiently to facilitate successfully the effective negotiation of a settlement. This reinforces my thought that Mediation has to go from being just a ADR process. Should it ever be more controlled, regulated or regimented, whether as to time, process or method, it would soon go the way of regular litigation or even, increasingly so, arbitration. Meanwhile, I am going for a walk on the nearby hills to reflect further. Thanks, Bill.

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