Mediation Message No. 75



Last month I wrote about attorneys’ pet peeves concerning mediators. This month, as promised, I’m commenting on gripes that mediators have regarding what lawyers do or don’t do at mediation.

Not filing a timely mediation brief – It is not uncommon for mediation briefs to be submitted the afternoon before or the day of the mediation. The law is a demanding companion, but the sooner mediators receive the 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.
Not sharing mediation briefs – A majority of 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 away. If you don’t want the opponent 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.
Not being prepared at the mediation – Before mediation begins, attorneys should know the facts and law; have interviewed their clients; form opinions about the value of their cases and submit timely and informative briefs. The failure to do so causes a fitful mediation process.
Making unreasonable 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. To this, I respond poppycock. (I might use stronger language, but I’ve been told that children read these messages.). An example should suffice: Assume the first demand is $750,000 or the first offer is $5,000 when both sides know the case is worth between $75,000 and $125,000. 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 $635,000 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.
Not having a person with authority at the mediation – 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 mediation sessions, unless excused, is that resolution of the dispute is more realistic 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, May 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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