Why Mediations “Fail”
The ultimate goal, of course, of a mediation is to resolve the dispute at the mediation. When this does not occur, most litigators and their clients will say that the mediation “failed”. To view mediation in this fashion is to, at least sometimes, elevate form over substance.
Setting the Table
Some mediations do not settle on the day of the mediation, but the “table is set” for a settlement, either by the judge in an upcoming settlement conference or by the mediator through subsequent negotiations. This has occurred in many of my mediations, and without the mediation itself, a settlement would not have been reached. Thus, it is not accurate to say that the mediation “failed”.
Hunt for Information
Even a mediation that “only” sets the table for settlement, typically results in the exchange of information previously unknown to counsel and the parties. While this is sometimes characterized as “free discovery”, such characterization is not accurate because the clients are paying their counsel, the mediator, and spending their own time at the mediation. Nevertheless, information received at a mediation is typically less expensive than that obtained through the discovery process. This is another example of the mediation not being a failure.
“Lack of Authority”
The reason the heading is in quotes is because, as a mediator, one never knows if there actually is a lack of authority or whether that is an excuse for not wanting to continue the mediation. If it is sincere, then a phone call to a supervisor or a chief financial officer can be made. Often, such phone calls are successful in allowing the mediation to continue and move toward settlement. Before the advent of cell phones, another statement frequently heard was, “I can’t reach anyone with more authority.” On rare occasions, that is still true, but I am usually skeptical when told that such a person cannot be reached.
Seeking Victory
It would seem obvious that no party “wins” a mediation. Nevertheless, some parties and their counsel come to a mediation with the goal of “winning”, which apparently is measured by the amount saved from what the defendant is actually willing to pay or the amount increased over what the plaintiff was willing to accept. Another type of “win” for the defense is to spend most of the time dwelling in the weeds about the merits without making any serious monetary offer. From the mediator’s standpoint, this is extremely frustrating, and when I encounter this, I wonder why the defendant agreed to mediation. The converse can be, but in my experience is less often, true. That is to say that plaintiff may also get lost in the weeds without making even a semi-serious demand until near the end of the day.
Let’s Blame the Mediator
If a mediator lacks the characteristics referred to previously, supra pp. 1-3, and/or lacks knowledge of impasse breaking techniques or both, the mediation may fail. Astute counsel, however, even when faced with such a mediator, can prevent the mediation from failing by being aggressive with their offers and counter-offers and making suggestions to, or even instructing, the mediator how to proceed. In the latter situation, the mediator actually becomes a facilitator simply carrying messages from room to room and occasionally offering an observation of her/his own.
It Does Happen
In my experience, some mediations are truly failures. Invariably, it is because one side (or in a multiple party mediation, several sides) came to the mediation with virtually no intention of resolving the case. They view the mediation as a “hoop” to jump through on their way to summary judgment, trial, or settlement on the eve of trial. This type of defendant perceives the eve of trial to be the point at which it will have to pay the least amount or, for a plaintiff, the highest amount it can obtain with neither side truly taking into account the amount of time and money spent to get to that point. I can’t speak for other mediators, but I find this type of attitude very frustrating. Several years ago, I actually had an attorney tell me, about two hours into the mediation, that his client had no intention of settling and simply agreed to mediate to obtain “inexpensive discovery”. Nevertheless, he continued the mediation process for approximately an additional two hours before he was willing to adjourn.
Another reason mediations fail is because of unrealistic expectations. Relatively recently, I mediated a case on two separate occasions. At the end of the second mediation, the parties agreed to consider a mediator’s number. The defense accepted the mediator’s number, which was rejected by plaintiff. The case went to trial, and the jury awarded $25,000 less than my mediator’s number. Thus, I wasn’t the only one who viewed plaintiff’s expectations as unrealistic.
This blog post is part of David Schaefer’s peer-reviewed article, “Some Thoughts About Mediation,” published in the Litigation Counsel of America’s Litigation Commentary & Review. For more information or assistance regarding alternative dispute resolution, please reach out to request a consultation, call us at 216-696-1422, or visit David’s bio for his contact information to reach out to him directly.
