Mediation Message No. 27

Why Mediations Succeed and Sometimes Do Not

Mediations are an extremely effective and cost-saving means of resolving both the simplest and most complicated of lawsuits. Occasionally, however, the parties are unable to resolve their differences. This message looks at the reasons why mediations most often work and then occasionally do not.

A. Why Mediations Work

The attorney was prepared. The attorney talked to his or her client about the purpose of mediation, the facts and theory of the case and how to respond, if permitted by the attorney, to the mediator’s or opponent’s questions. The attorney thought about the strengths and weaknesses of both his or her own case as well as the opponent’s and was prepared to discuss those pluses and minuses with the mediator. Demonstrative evidence and illustrative aids, which emphasize critical factual and legal parts of the case, was assembled and used. A mediation brief containing case status information, a summary of relevant facts, applicable statutory and case law and all settlement demands and offers was given to the mediator well before the mediation. The attorney thought about how far he or she and the client were prepared to move on the settlement terms before they could go no further. And, finally, the attorney thought ahead as to what would have to be done to try the case if it had not resolved at mediation and, more importantly, realistically evaluated the chances of achieving his or her goals at trial.

The attorney came to the mediation in good faith. Good faith includes having an open mind, a willingness to discuss all aspects of the case with the mediator and an ability to change a point of view if a reasonable, contrary argument has been provided.

B. Why Mediations Don’t Always Succeed

An attorney was not prepared for the mediation (see above).

An essential party or person with settlement authority did not appear at the mediation. Every plaintiff and defendant should be at the mediation, unless exigent circumstances exist, their presence has been excused by the mediator or the defendant is insured under a policy that contains no reservations, so that their assent to settlement terms can be easily obtained. Similarly, it is beneficial if all other interested parties and adjusters are present so that the mediator can personally speak to them about factual and legal developments that may impact their respective cases. Otherwise, it is too easy for such a person, if reachable only by telephone, to disregard the mediator’s viewpoints.

A defendant did not have sufficient authority to settle the case. Sometimes a defendant has evaluated the matter more conservatively than the facts would dictate. This is not a problem if a telephone call or a continuance of the mediation will produce additional authority.

A party had unrealistic expectations (see above).

The timing was not right. A case may not settle at mediation if calendared too early, and the parties have not had the opportunity through discovery to evaluate the factual issues. (Conversely, early mediation can work because it is cost-effective and the parties’ expectations or goals have not yet hardened.) Also, a defendant who has filed or expects to file a motion for summary judgment may prefer to see how the court rules on the motion before continuing with the mediation, unless settlement is on substantially reduced terms.

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, October 2005

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