I will never understand why people go to mediation (and pay lots of money to a mediator) when they are not  prepared to settle. I had another one of those mediations recently that went nowhere even before it started.

I knew something was amiss when I did not receive any briefs. So, I called one counsel to remind her of the mediation. She looked at the calendar, saw it was scheduled and decided to go forward as the client  wanted to settle. I called the other counsel and left a message that was not returned. (At that point, I should have gone with my intuition and postponed the mediation but did not!)

It turns out that plaintiff’s counsel had provided a settlement demand quite a while ago; defense counsel never responded. However, I was told that counsel conversed on the eve of the mediation. In that conversation, defense counsel assured plaintiff’s counsel that the case would settle at mediation.

So- with plaintiff’s demand in hand, I spoke with defense counsel. The response was an extremely minimal amount. I knew  if I conveyed it to plaintiff’s counsel, counsel would  immediately terminate the mediation. So,  I suggested to defense counsel  that plaintiff’s counsel would be extremely upset at that especially since it was the same demand given way back when. Defense counsel agreed to speak with her client some more. And that is where it ended. After more than an hour of private conversation with the client, defense counsel had nothing new to report. If anything, counsel wanted to continue the mediation to see if third parties, so far quite unwilling to contribute, would change their minds and do so. At that, plaintiff’s counsel terminated the mediation.

As I mentioned in my last blog, Standard 1 of the Model Standards of Conduct for Mediators is entitled Self Determination and defines it as “…the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” It also provides  that despite a party’s right to self-determination, the mediator “… may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards. “  (Subpart A1)

What this means is that a mediator does have the ability to override a party’s self-determination for the sake of quality of process. An example may be that while a party wants to hold a joint session, the mediator decides that caucuses would be best or vice versa.

In this case for the sake of a quality process, I should have gone with my intuition, overridden the self -determination of the parties and counsel to proceed with a mediation for which neither was prepared and suggested that the mediation be postponed to another day.

I have never terminated or postponed a mediation against the wishes of the parties or counsel. As there is a first time for everything, I should have done it here and saved everyone several hours of time and lots of frustration!

… Just something to think about.


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