By Amin Danai
As many people do, mediators often think in terms of moments. When they look back at one of their cases, they probably don’t remember every fact or legal argument or offer, but they likely do remember certain moments. Such memorable moments could include a point when a party became emotional, or when something unexpected happened, or when the mediator went out on a limb and asked a difficult question or carried a tough message into a room. Different mediators find different moments significant. But, there is one moment during many mediations that most mediators would agree stands out – it’s that point when all of a sudden it looks likely that the case is going to settle. There is often still ample work to do, maybe hours of it, and it’s abundantly possible for the case to blow up and not settle, but it’s a turning point. It’s when the mediator stops thinking “How the heck am I going to settle this?” and starts thinking “OK. Let’s bring this baby home.”
I grew up playing a lot of tennis, and I analogize the above moment to a similar moment that tennis players experience. At some point during a match, the player in the lead might feel that he can smell victory. That feeling can be dangerous. Instead of continuing to play in the way that earned him the lead, he begins playing “not to lose,” and you can guess what happens.
In mediation, too, realization of the “turning point” moment can be dangerous. There are countless things that can derail a promising negotiation. While the “turning point” moment is encouraging for the mediator and any other participant who notices it, it’s not to be mistaken for that other moment when the ink is drying and everyone is shaking hands.