Mediation Message No. 53



The sine qua non for an effective mediation, as I’ve mentioned many times, is preparation. But good faith and flexibility by the parties, although not as important, are also integral to resolving cases.

One aspect of good faith by parties in mediations is that they shall be willing to consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good faith. In the mediation context, it means that the parties will be open to changing their minds; it is the polar opposite of rigidity.

Before the mediation, lawyers should assess their respective client’s willingness to listen to competing facts and theories and to adjust their positions accordingly. It is their obligation, if the clients are rigid, to educate them about the nature of the mediation process and to advise that resolution is not likely to happen if they are not willing to modify their positions or be willing to compromise some of their firmly held opinions.

Despite these best efforts, if a client is adamant that it is his or her way or trial and the lawyer honestly believes that this position is both deeply held and unalterable and cannot be changed by the most persuasive and evaluative mediator, it is better to not go forward with the mediation. Rather than proceed with a futile settlement effort, the attorney should strongly consider calling opposing counsel and the mediator to advise about the probable hopelessness of the mediation. (This discussion, incidentally, is privileged. See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137.) By alerting the other participants, the lawyer has preserved the integrity of the mediation process, saved opposing counsel from expending precious time and money and negated the other attorney from having to expound at the subsequently failed mediation, Why are we here?

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, August 2009

Please visit my website at for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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