Party Psychology

A mediator must keep in mind party psychology.  For example, the longer mediation lasts, the more a party has invested in it.  This investment may eventually reach a critical mass that causes him to begin to believe mediation will have been a waste of time and money if no agreement with the other side is forthcoming.  Such a belief may well instigate self-imposed pressure to settle.  (The validity of this mindset is an issue beyond the scope of the present discussion.)

The prospect of further proceedings in lieu of settlement further increases this pressure in the context of litigation.  There, the judge wants the mediation to conclude by a certain juncture, so that she knows whether to schedule a trial.  A party thus faces a point of no return in terms of resolving the dispute, or incurring the substantial expense and many hours required to prepare for and go to trial.  Besides these costs, the emotional toll of the dispute will persist, and likely increase as the party must relive it in the courtroom and contend with the anxiety attendant with the uncertainty of how a judge or jury will decide his fate.

Contributor: Ben Jacewicz, NVMS Mentor Mediator