It’s Two O’Clock, Do You Know Where Your Settlement Is?

By Joe Murphey

There’s a reason why, in the early afternoon hours, the hallways and corridors of Miles Mediation are filled with the aroma of freshly baked cookies and movie-style popcorn. Comfort food to the rescue! Behind the doors, in many of the conference rooms at Miles, around this same time, difficult decisions are being contemplated.


The optimism and enthusiasm of the morning hours – a time when all parties were at or near their original positions is just a memory. Those words of the mediator from the opening session, which then only seemed to apply to the other party, are coming home to roost: “Mediation is about compromise, and though compromise has become an obsolete term in our political culture – where neither side budges and nothing ever gets accomplished – here at Miles Mediation most cases resolve because our clients see the wisdom in giving ground, to get ground, to get it done.”


Any experienced mediator knows you can’t rush the parties to or through the “get it done” phase of a mediation. Every case is different. There are some that will wrap up before lunch. Other folks may be ordering pizza for dinner as they work well into the evening. But, in the main, for most of the tort and contract cases we do at Miles, there’s just something about 2 pm. By then, though the case may not be settled, the die is being cast in terms of what settlement will look like. The parties have, by then, clearly spelled out what they cannot do – “We will never pay seven figures” or “We cannot possibly consider X because that wouldn’t even cover our liens.” Now it’s time to hone in on what they CAN do, that the other side might possibly do. Time for a “bracket” perhaps? Or maybe the attorneys slip away from their clients to meet with the mediator in the hall for a side bar? Common questions: Should we put our cards on the table? If we walk out now, will they offer us more money next week? If I make my highest offer now, I know they’ll counter and I’ll be out of money!”


Rest assured that whatever uncomfortable and distressing decisions face you and your client at 2 pm at Miles Mediation we promise this: (1) You’ll have the tastiest comfort food available, and (2) you will have a mediator with vast experience getting folks past 2 pm and well on their way to resolution.