Several months ago, Joan Kessler asked that I provide an article to be included in the ADR issue of The Advocate. Since then, I have pondered on what I should write about. For inspiration, I went to my weekly blog which I have been posting since August 31, 2006. Reviewing them, I noticed a recurring theme: preparation for mediation. At least twice a year, I posted vignettes about mediations gone badly due to a lack of preparation. Because preparing for mediation is so important, I would like to share them with you, as my contribution to this ADR issue of The Advocate.
Preparing For Mediation: Something To Ponder
Alexander Graham Bell once said, “Before anything else, preparation is the key to success.” We have all heard the adage to the effect that success is 99% hard work and 1% luck.
So, too, with mediations. To reach a resolution during a mediation, each party must prepare for the mediation. The failure to do so can lead to a frustrating end to the mediation.
This was brought home in a recent mediation I conducted. It involved a case in court and so both the plaintiff, defendants and their respective attorneys were at the mediation. Due to the nature of the action, the mediation was conducted solely in separate sessions.
During my first session with each party, I explained about the mediation, its purpose, my role, the process and what was hoped to be accomplished. However, as the day progressed, it became clear to me that the plaintiff truly did not understand why she was there, or what was my role. When the plaintiff bluntly asked me, “whose side are you on: it sounds like you are against me,” I quickly understood that the plaintiff had not been prepared for the mediation. As we discussed the various issues in the case as they affected liability and damages, I could see that these were all new to the plaintiff; she had neither been counseled about the strengths and weaknesses of her case, nor about the several different possible outcomes at trial, nor about their respective probabilities and their consequences. More importantly, the case involved issues of constitutional dimension meaning that this case probably would not end at trial but would move on to the appellate courts and thus continue for years. Practically speaking, assuming the jury awarded money damages to plaintiff, she would not receive the money for years since defendants would post an appeal bond. All this, too, was new to the plaintiff. She did not understand that her case involved constitutional issues that may prevent her from receiving any monies awarded by a jury for years and years to come or more importantly, that her case could take on a life of its own in which she would be caught up for years to come; her attorneys wanted to make law on her case, leaving her without closure for many years.
As you can surmise, although the defendants made an offer that probably exceeded what any jury would award, the plaintiff rejected it. Why? She had unrealistic expectations due to a lack of preparation for the mediation. She was making decisions without having been fully informed about all of the issues, the goals of counsel versus her goals and the consequences of each.
Whether this case will eventually settle. . . I do not know. But what I witnessed was a reasonable settlement offer being rejected by a plaintiff who did not appreciate the nuances of mediation due to a lack of preparation.
Preparation: A Necessary Must
Earlier this week, I mediated a case between a homeowner and a general contractor about an unsuccessful home improvement. The general contractor built two patios, pouring the concrete without checking the weather forecast. Later that evening, it rained heavily causing the concrete not to “cure” properly. While the contractor attempted to correct the problem by spreading another product along the top of the concrete, this “fix” did not work. As a consequence, the homeowner sued all possible parties, and the parties appeared for mediation.
The problem was that the parties were not prepared for mediation. While everyone agreed that there was a “problem” with the larger of the two patios, no one had employed an objective third party to provide a complete diagnosis of the “problem” and all of the possible remedies. Rather, the homeowner, in an attempt to keep costs down, had obtained only informal evaluations from some friends – none of them complete. The defendant responsible for the product