The Mediation 'Blackspot' and how to get through it

All mediations hit what we call a ‘blackspot’, where neither party thinks that the process is going to work and secretly the mediator is coming to that conclusion as well. At this point you have to trust in the mediator and trust in the process and invariably you will come out at the other side with a settlement. 

It usually happens when the mediator has investigated the facts, gone through his initial risk assessment and both parties have started to make offers but neither wants to give any ground and we are not in what we would call the ‘band of settlement’. 

At this point the mediator will start to float ideas which might be well outside the normal terms of settlement and begins to test the parties’ wills. 

How can the lead negotiator help at this point?

Encourage the client to make more realistic offers of settlement. If the client has a bottom line and is significantly off it then let the mediator know that there is scope for movement- you don’t need to necessarily need to let him know by how much but just let him know there is something on which he can negotiate. 

Sometimes there is something that is very important to one party, which isn’t necessarily obvious and might not be too important to the other side to concede. Consider what else your client wants that is important to your client but might be easy for the other side to concede.

If you have an idea then don’t hold it back. Put it to the mediator and you can discuss it, it might just help.

If you client really does need to settle then start encouraging the client to reflect on their needs rather than principles. The mediator will no doubt focus on this but when he is not in the room there is an opportunity for you to have a full and frank discussion with your client.

The mediator is not asking you to capitulate and to make unrealistic offers to achieve settlement – he is just encouraging you to be more flexible, more lateral thinking, a little bit zany even, to help us all achieve a settlement for your client.