By Leslie King O’Neal
Speed Is The New Reality
A recent article in the ABA Dispute Resolution Section newsletter[i] asserts mediation has become “a protracted, complex proceeding” contrary to its purpose. Written in a lively tone and citing Voltaire, B.F. Skinner, Sir Isaac Newton, and Ivan Pavlov (with references to Bob Dylan and Beethoven), the article notes how our culture has changed over the last 20 years and states, “speed is a characteristic of our new reality.” For example, information formats have changed from books to articles to blogs to social media posts.
Do you agree that mediation should adapt to “speed culture?”
Adapting Mediation to “Speed Culture”
The authors suggest lawyers and mediators must lean into the current “speed culture” and the mediation process must adapt to “the need for speed.” The authors criticize the leisurely pace at which some mediations are conducted, where half the day is spent making small talk over coffee and bagels, followed by the mediator’s lecture, opening statements and initial caucuses, with no meaningful settlement offers before lunch. They state, “this is not how our clients conduct their businesses. ” Maybe not. But mediation is different from most clients’ day-to-day business encounters. Sometimes making small talk over coffee helps parties connect with each other and with the mediator. However, no amount of small talk will overcome lack of mediation preparation.
To Accelerate Mediation, Prepare Early
The problem, in my view, is not that the parties are making small talk over coffee. Rather, it’s that they’re making small talk because they aren’t ready to negotiate. Often this is because they didn’t exchange relevant information about liability or damages, nor did they discuss insurance coverage or other key issues before mediation. Using the “Guided Choice” mediation approach, https://theconstructionadrtoolbox.com/2024/10/guided-choice-makes-mediation-more-effective/)and pre-mediation planning strategies (Strategies for Success in Multi-Party Mediation – The Construction ADR Toolbox ) helps parties obtain necessary information in advance, so they can make informed settlement decisions on mediation day. When parties have the facts and figures required to analyze the dispute, negotiations at mediation accelerate.
Brevity Is The Soul of Wit [ii]
The authors quote Voltaire: “The secret to being boring is to say everything,”[iii], noting current litigation practice encourages this. Attorneys, concerned about preserving error for the record or giving the court numerous alternatives to rule for their client, submit voluminous briefs, exhibits and expert reports in court. Then they send these tomes to the mediator shortly before the mediation session. The mediator either doesn’t read the materials because of time constraints or the mediator expends additional (unnecessary) hours reading the materials. Neither scenario increases mediation speed or efficiency. Rather than filing voluminous materials, the authors suggest providing the mediator smaller amounts of information (e.g. executive summaries) that can be consumed quickly.
Help The Mediator–Summarize & Organize
Mediators don’t usually find massive filings helpful unless there is a well-written executive summary and index (judges may also appreciate a summary and index). Mediators’ preparation time is limited. Before filing materials with the mediator, consider how the mediator will process and use the materials. The authors observe: “Help your mediator with tight prose, bullets, white space and tables (where appropriate, i.e., damages).”[iv] Having this information at hand helps the mediator in caucus discussions.
Providing summaries is easier now that artificial intelligence tools are available to summarize lengthy briefs and expert reports quickly. AI tools can also create graphics, timelines and tables from written documents, (See https://http://theconstructionadrtoolbox.com/2024/10/how-ai-tools-can-improve-mediation/). Using AI tools requires skill, and users must comply with ethical guidelines, but when used appropriately, they can simplify explanations of complex information, saving valuable time.
Mediation Doesn’t Begin at 9 a.m. in the Conference Room
Mediation isn’t an event; it’s a process. A well-worn phrase in construction is, “Failing to plan is planning to fail.” [v] Pre-mediation preparation through information exchange and mediator conferences can make negotiations more productive earlier. In addition to those mentioned above, the authors have other interesting suggestions:
- Upfront Bookending to Jump Start Negotiations
Most mediators and attorneys are familiar with “bookending.” This technique is often used later in the negotiation process. What if the mediator and parties discussed bookends before the mediation session? The authors suggest this may jumpstart mediation because “the parties will naturally be thinking of the next moves” before mediation “rather than on the fly,” thus speeding up movement early in mediation.
- Consider Non-Monetary Settlement Terms
Settlements often include non-monetary terms, but frequently these are not considered until the final hours, when they are hastily negotiated or, worse, become stumbling blocks. Discussing these terms before mediation allows parties to draft a term framework for the settlement agreement. Things to consider include: the scope of releases, extended warranties, future business commitments or confidentiality issues that may become part of an overall settlement.
- Formulate Key Settlement Terms in Advance
Having a list of key settlement terms for reference at mediation makes drafting a settlement agreement or term sheet much easier. This is especially true of non-monetary terms. For example, is payment necessary within a specific time? Will there be assignments of claims? As the authors note, “Your clients’ routine commercial terms are not hastily scribbled out on cocktail napkins; neither should your mediated settlement agreements.”[vi]
Takeaways
Mediation may never be a speedy process (and perhaps speed shouldn’t be the goal), but it can be a more efficient one.
- Plan Ahead: The “need for speed” in mediation is really a “need for advance planning and preparation.”
- Exchange Information: Pre-mediation information exchange provides parties and counsel with information necessary to make settlement decisions.
- Keep It Simple: Help the mediator by providing summaries of voluminous materials as early as possible. Use AI tools where appropriate.
- Know What’s Important: Formulate key settlement terms in advance. Have these available when drafting the settlement term sheet or agreement.
[i] Thomas George Ciarlone, Jr. & Demetri James Economou, Mediating at the Speed of Business, ABA Section of Dispute Resolution Just Resolutions Newsletter (January 2025). The authors are attorneys and mediators with Kane Russell Coleman & Logan, practicing in the energy, oil and gas sector. (https://www.americanbar.org/groups/dispute_resolution/resources/just-resolutions/?login)
[ii] William Shakespeare, Hamlet (Act II, Scene 2).
[iii] Voltaire, Discours en ers sur l’homme, “De la nature de l’homme” (1737) (quoted in Mediating at the Speed of Business, note 1).
[iv] Speed, supra, note 1.
[v] Attributed to Benjamin Franklin, but Quoteinvestigator.com http://quoteinvestigator.com found no substantive evidence that Ben used this adage. The first use appears to be in 1919 by Rev. H.K. Williams in The Biblical World, Vol. 53, No.1.
[vi] Speed, supra, note 1.
