Is Mediation for the Birds?

We had a robin’s nest in our yard this summer. It was lovely to have a front row seat (dare I say bird’s eye view?) to this natural process.

Most can identify the pretty blue robin’s egg, and the adult birds making their sunrise foraging rounds. But there is a middle state: the baby robin.

Have you ever seen a baby robin up close? It is not cuddly or cute. It is a little off-putting, to be honest. While replacing one of the babies who had fallen out of the nest, I had to pick it up.* It’s basically a raw egg with skin and claws. A squishy outpost on the egg-to-bird pipeline.

Sometimes lawyers in mediation will say “this is a waste of time” when negotiations stall or are frustrating. That may be accurate, but more often we are just in the ugly nestling phase of the mediation. The negotiation will take a different character soon enough, but patience is needed. That is why for difficult cases, the ones “that are never going to settle,” it may be worthwhile booking a full day rather than a half day, if settlement is truly the goal.

Just as an egg needs time to grow into a fully developed bird, settlement discussions need their time to evolve. There are rarely shortcuts. Mediation might be the last stop before the deal, or it may be the beginning of the process. Don’t let the messy middle put you off from persevering. 🪺

* I checked beforehand and it seems that a nestling can be touched and replaced in the nest without compromising its acceptance by its family. That was our experience in this case.

This article was originally published on LinkedIn on August 28, 2024.