By: William R. Lancaster Litigator | Outside Chief Legal Officer – Outside Chief Legal LLC
It happens in every mediation. Sometimes for an hour or so, sometimes for less time, sometimes for days. You and “your room” have considered the opposing party’s last move, discussed a response, made a decision, communicated it to the mediator – and now you wait.
Most people use that time to stretch their legs, grab another coffee, check email, or just sit. Do whatever you need to do to stay sharp, but do not miss the opportunity in front of you: a natural pause to step back and think. At Outside Chief Legal, we see these breaks as one of the most underrated tools in the mediation process.
Use this “time out” to evaluate your position again. Has the activity so far confirmed your pre‑mediation assessment of the case? Has the other side – or the mediator – raised arguments you were not anticipating? If so, how can you effectively respond? What evidence, themes, or concessions are really moving the conversation, and which ones are not? It is also the right moment to reassess the other side’s position. Are you seeing more flexibility than you expected? Less? Are they revealing underlying business concerns you did not fully appreciate before today? Those insights are often clearer in the quiet moments than in the rapid exchange of offers.
Use the break to consider, evaluate, and, if needed, adjust your position, your arguments, or even your expectations. This may not happen the first time the mediator leaves your room – maybe the third or the fourth – but when the opportunity shows up, do not waste it. Seize it. Have a frank conversation with your client about where the case really stands. Talk with the mediator about how he or she sees the matter and where the mediation appears to be headed. A good mediator – like the ones we work with and the neutrals on our own team – will use that time to help you see the case from all sides.
If you think about it, these pauses are a lot like halftime in a game. The players and coaches get to rest, take a breath, talk about what is happening, and think about the game that is actually being played – not just the one they drew up on the whiteboard. Mediation breaks are the same. They are not dead time; they are the space where you decide what you are going to do next. Used well, they can be the difference between a stalled negotiation and a resolution that your business can live with.
Outside Chief Legal helps business owners and leadership teams treat mediation as part of a larger strategy, not a one‑off event. That includes what happens in the room, what happens during the breaks, and how today’s decisions affect tomorrow’s risk. So the next time the mediator steps out and the room gets quiet, do not treat it as empty time. Treat it as halftime. Step back, think clearly, and use the break to make the process count.
General information, not legal advice.
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