I had a really weird almost mediation recently. It was a lemon law matter. It cancelled at the last minute simply because plaintiff’s counsel (let’s call her Joan) was sending another attorney (let’s call her Janice) in her stead. The defendant did not like this substitution and so cancelled.
It all started when defense counsel (let’s call her Martha) called me to set up the mediation. Evidently, defense counsel Martha in speaking with plaintiff’s counsel -Joan – told Joan that the only way her client would agree to mediate would be if Joan personally attended the mediation. This would give the defendant’s representative a chance to meet Joan in person for the first time and to work with her to resolve the case. According to defense counsel Martha, she made this point clear to Joan- that Joan personally had to attend the mediation for it to go forward. (Naturally, Joan does not recall this conversation.)
A few days before the mediation, I received a telephone call from substitute counsel Janice who advised that she (instead of Joan) would be attending the mediation and representing plaintiff. I thought nothing of it as this happens quite often; a substitute attorney appears at mediation instead of the actual case handling attorney.
But then, the day before the mediation, I received a telephone call from defense counsel Martha who was quite upset about this substitution. She explained to me for the first time that the whole mediation was predicated on plaintiff’s counsel Joan (rather than anyone else) attending. While in truth, it was probably better that substitute counsel Janice was attending because she would be more objective and rational than plaintiff’s counsel Joan, the defendant would have none of it. As much as defense counsel tried to explain to her client that it was better for substitute counsel Janice to be attending, the defendant balked at this sudden change in plans, became quite upset and refused to attend the mediation. Thus, the mediation was cancelled.
As a result, the opportunity to settle a case has been lost. Moreover, it will probably cost the defendant more in the long run to resolve this matter for a couple of reasons. First, the plaintiff is already upset with the defendant; that is why she sued. Now, to have a mediation cancelled at the last minute solely due to a change in attending counsel will, to some degree, harden the plaintiff even more in her position. She will probably want to “punish” the defendant by demanding more money than she would have accepted at mediation. Second, by statute, the defendant is required to pay the attorney’s fees of the plaintiff. These will only increase over time or the longer this matter lingers. In short, this case has become more expensive for the defendant to settle.
While Standard I of the Model Standards of Conduct for Mediators is party self- determination: that each party is able to make uncoerced decisions and free and informed choices as to process and outcome, I wonder if this concept was taken too far in this instance. Did the defendant lose sight of the forest for the trees by refusing to attend mediation solely because a substitute counsel would be representing the plaintiff? The purpose of mediation is to settle cases. Sometimes it is a messy process, sometimes it is all neat and clean. What is important is that the case is settled. This is the larger picture that the defendant lost sight of.
Mediators are trained to be flexible and to be able to roll with the punches and change course suddenly as required. Perhaps, clients need to be able to do this as well. Otherwise, the priorities get warped and valuable opportunities will be lost.
… Just something to think about.
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