Mediation Message No. 144


I wrote about “Mediator’s Pet Peeves” six years ago in Mediation Message no. 75. Because of the passage of time, I’ve revisited the subject with a more positive approach, thus pet peeves have become a wish list.

I wish mediation briefs were filed timely. Having once been a trial lawyer, I know the practice is demanding and there are never enough hours in the day to complete every legal obligation. Nonetheless, please submit your mediation briefs with enough time so that they can be digested with the respect they are due. The sooner mediators receive your briefs, the sooner they are read and considered and critical legal issues can be researched. Further, late briefs may be disorganized and sometimes omit essential facts, law or argument.

I wish opposing parties shared their respective mediation briefs. Most attorneys do not send their briefs to opposing counsel, which means that mediators must spend valuable time educating the parties about facts and laws in contention. Submitting a confidential brief when a complaint has not yet been filed makes sense but does not when discovery has been completed and trial is not far off. If you don’t want the other side to know about facts, legal theories or argument that are best held in reserve, then put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum. At the end of the day, experience has proven there are few issues a party chooses to keep secret throughout mediation.

I wish attorneys diligently prepared for mediation. Know the facts and law ahead of time; interview the client; have an informed opinion about the value of the case; organize the exhibits and submit a timely and informative brief – all of these are essential prerequisites to an effective mediation.

I wish attorneys made only reasonable demands and offers. Unreasonable demands cause unreasonable offers and vice versa; they also cause delay and stalemate. Unreasonable positions often result from a concern that a more sensible demand or offer will compromise the attorney’s bargaining position. That is poppycock. (I might use stronger language, but I’ve been told that children occasionally read these messages.) An example should suffice: Assume the first demand is $750,000 or the first offer is $5,000 when everyone knows the case is worth between $75,000 and $150,000. Isn’t the plaintiff better off initially demanding $300,000 and making the next move a small one, if the responding offer is also small, instead of dropping to $710,000, $675,000 and $640,000 and so on until, in exasperation, both sides agree to brackets, which hopefully move the parties to where they should have been long before? To ask this question is to answer it.

I wish people with authority always attended the mediations. The practical purpose behind California Rule of Court 3.874, subdivisions (a)(1) and (2), which requires the personal attendance of the parties, their counsel and insurance representatives at all court-connected mediations, unless excused, is that resolution of a lawsuit is more probable when the decision makers are present to hear about the benefits of settling and/or the downsides of going to trial.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, March 2018

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