May 18, 2024

Mediation EI Enhancer #3:  Managing Time

Emotional intelligence is one of the most underrated and overlooked characteristics of a good mediator.  Negotiations are built on trust and emotional intelligence is the foundation of trust.  Yet so many mediators neglect emotional intelligence.  In this 5-part series, we’ll be exploring ways EI can enhance mediation. 

The third “EI Enhancer” in mediation (read #1 or read #2) is managing time effectively during the mediation.   

Time is money of course, but managing time in mediation is more than that.  It is a courtesy.  As lawyers participating in mediation we either bill by the hour or have to justify a contingency fee by some measure of time spent.  Generally speaking, the lawyers don’t care that much if the mediation goes all day or goes into the night.  As a result, lawyers and mediators can be desensitized to the length of time mediation takes.  

The non-lawyer participants on the other hand are very much aware of time spent in mediation and are not accustomed to spending all day in a legal meeting, much less a day-long Zoom meeting.  Time matters for these clients, and a failure to manage or be respectful of a person’s time (especially when they are paying one or more attorneys hundreds of dollars per hour for their time) is insensitive.  Simply put, being respectful of others’ time builds trust, while mismanaging time undermines trust.  

While this concept may seem simple, it is amazing to see how many five-figure mediators completely squander and mismanage time.  There are many examples of this, but a more recent example was a mediation our team was involved in where the mediator started the mediation at 9:30 a.m. on Zoom and proceeded to spend over an hour with the other side without ever popping in to say hello or otherwise letting us know what was going on.  For all we knew, the mediator may have been tardy or failed to show altogether.  While this is an extreme example, there are many other examples where mediators leave the room for 30 minutes or more without ever giving the parties an idea of when they expect to come back.  For an in-person mediation, this may be slightly less irritating if you and your conference roommates can find something good to chat about, but for a Zoom mediation, sitting on camera idling can be incredibly frustrating.  

This mediation gaffe could have been remedied with a simple email or text in advance about where the mediator planned to be and when.  Such oversights, however, are but a symptom of a much larger problem that most mediators struggle with, which is having no schedule at all for mediation.  The mantra of many mediators is “we’ll be here as long as it takes.”  While the sentiment is good in some contexts, and certainly some mediations benefit from going into extra innings, this should be the exception and not the rule.  In practice, “as long as it takes” is often just an excuse to be inefficient.  

The best mediators have their day mapped out with a proposed schedule and clearly communicate that schedule and adjust the schedule as needed throughout the day.  Sticking to a schedule and being respectful of people’s time gives participants the feeling of certainty and confidence in the mediator and helps eliminate emotions that might negatively influence negotiations. 

Continue to Part 4 of the series...

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