Mediation Message No. 74



I asked lawyers with whom I regularly mediate what “pet peeves” they have about the mediation process. Their responses, which I’ve been assured are only about other mediators and not me, provide valuable reminders about what attorneys want out of mediation; their thoughts also provide me the opportunity to comment briefly about their complaints.

“Not respecting a lawyer’s evaluation. Harping on ‘risk’ in general, without respecting what the lawyer has already considered. I usually know the risk part, and I know the damages part. I may not have weighted something right and that is what I want to hear about, because that goes into my evaluation.” MDM: It’s nigh impossible to gain the respect of a lawyer when you don’t respect that lawyer’s arguments.

“Having a negative attitude about the case.” MDM: The process must be a positive one for all involved, regardless of the outcome. The mediator is responsible for setting the tone.

“Active, not passive, participation by mediators. The mediator should provide constructive suggestions; educate each side about the other’s positions and goals; update the parties during the day with summaries of where matters stand, what has been accomplished (if anything), who has made concessions and what points of dispute need to be developed.”  MDM: As I’ve said before, mediators are not potted plants; they must be actively involved in the process.

“Fail to communicate offers or demands.” MDM: This is basic mediation 101; the case cannot settle if a party doesn’t know the other side’s positions. Besides, the failure to communicate a position is another form of disrespect, if not just plain sloppiness.
“Giving up on the mediation process too soon.  I paid for a whole day mediation and, after less than two hours, the mediator said it wouldn’t settle. I felt like we were ripped off.” MDM: This is inexcusable. Mediators must begin every mediation with the mindset that every case can be settled, regardless of the circumstances. And they must maintain that approach until every angle has been thoroughly explored and exhausted. Or, as Jimmy Valvano once famously said, “Never give up. Never give up.”

“Divulging, without consent, a party’s negotiated position.” MDM: Confidentiality is the cornerstone of mediation. A mediator who has divulged, without consent, a party’s material fact, might as well pack up his or her bags and move to South Dakota.

“No follow up if the case did not settle.” MDM: Not all cases settle at mediation. Nonetheless, the parties expect or hope mediators will stay involved – and they should, even if it is without additional fee or charge.

Next month, I shall review mediator’s pet peeves about attorney conduct at mediation.

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, April 2012

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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