“Can’t we cut to the chase?” is a refrain mediators sometimes hear during a caucus. It may reflect frustration with the pace of the negotiations – although sometimes it’s a stratagem to distract or force the mediator to apply greater pressure on the other side.
Even when expressions of party impatience are sincere, the short answer is “no, we can’t simply cut to the chase.” First, if cutting to the chase was an effective approach, counsel could have picked up the phone and negotiated directly without hiring an expensive mediator. Second, there are often good reasons for a slow pace. The other side may be hanging tough, stubbornly hanging onto their position despite difficult evidentiary problems. Perhaps a party requires time to build trust or needs to vent. We may be grappling with a stubborn obstacle in the other room and until we get through it, no progress will be made. Cutting to the chase will generally not move things along until the mediator has had sufficient time to challenge assumptions, or hear the list of grievances, or engage in reality testing, or otherwise engage in the difficult process of helping a party re-assess their risk. Third, no two litigators negotiate exactly alike or at the same pace. Indeed, slowness may be a deliberate strategy of one side to force a fumble by the other. Recognizing that opposing counsel is impatient, for example, someone may be deliberately causing aggravation in the hope that frustrated and increasingly impatient, their adversary will make a mistake.
If the impatient litigator wants resolution, it’s necessary to have faith in the skill and experience of the mediator to move the process along at an appropriate pace.