Although as a full time neutral, I usually get paid for mediating, as a way to give back to the community, I am on various state and federal court mediator panels in which parties can utilize my services for a certain number of hours on a pro bono basis or for free. After that set number of hours has elapsed, the parties can continue with the mediation but must pay an agreed upon rate.

What I am finding is that parties tend to be penny wise but pound foolish. In recent weeks, I have had two “pro bono” mediations in which the parties used up all of the “free” time, and then adjourned the mediation. In the first instance, the parties agreed to simply continue negotiations directly between themselves. Recently (about two weeks after the mediation), I spoke to counsel representing the parties to see if the matter had settled: not only had it not settled, the attorneys had not even engaged in any further communications on the topic. Once again, the matter had slipped through the cracks, or the attorneys found themselves tending to more “urgent” matters. In response, I again, suggested that they return for a second mediation session but I sensed a hesitancy. I do not know if the reason is time, money or both. But I do know that a good way to get people to focus on settlement, is to sit them down in different rooms at the same time and place to discuss the matter and only that matter. Force them  NOT  to multitask. Left to their own devices, the attorneys and their respective clients will find settlement difficult to accomplish due to interruptions and then additional interruptions interrupting the first interruption.  Put simply:  Life gets in the way! And… to settle a matter, one must isolate it from the rest of life so that full attention can be given to it.

In the second instance, the parties were clearly penny wise but pound foolish. As before, the mediation was initiated on a pro bono basis. Due to the nature of the lawsuit, the Defendant was quite emotional about being sued. Consequently, defense counsel had to spend quite a lot of time calming down the defendant and explaining that as much as the defendant did not want to pay plaintiff a nickel (or even a penny), chances were good that  the defendant would lose at trial and so the only “reasonable” course of action was to settle now. But, as one might suspect, these conversations took quite a bit of time and quickly used up the “free” time.   At the end of the “free time”, I sensed that the matter could definitely settle in another hour or two. Defense counsel was making headway with defendant, albeit slowly but surely. But, Plaintiff’s counsel did not want to spend one penny paying a mediator and so simply requested that I ask defense counsel to call her directly to continue these negotiations in the coming days.  Plaintiff walked out without any settlement, whereas if the plaintiff had been willing to split the cost of my time with the defense, she would have most probably walked out with a nice settlement in hand. Penny wise and pound foolish.

One reason that such a settlement may now be difficult to achieve by telephone over the coming days is that the defendant may simply change her mind. All of the discussions that counsel had with the defendant may now become marginalized in the defendant’s mind. No longer sitting in a conference room face to face with counsel having to focus solely on this “problem”, the defendant may well feel no longer “under pressure” to resolve it any time soon.    As we all know, it is quite different to talk to someone face to face over the course of a few hours working towards a solution together than to have those same conversations by telephone over the course of a few days or weeks and in between all of the other interruptions. Moreover, in this second case, a language barrier existed between counsel and client such that a third party was present to do the translating. That person may not always be available in the coming days to help further the negotiations.

So- the point is simple- do not be penny wise but pound foolish. If you happen to be in a situation in which someone is providing a service for a set amount of time for free, at the end of that period, don’t walk out to “save” money. Continue the negotiations on a fee paying basis. In the long run, it will still be cheaper when you add up all of the additional time and costs involved by prolonging the matter.

…. Just something to think about.


Do you like what you read?

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services:

and for the URL, type in my blog post address: and then type in your e mail address and click "submit".

Copyright 2021 Phyllis G. Pollack and, 2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and with appropriate and specific direction to the original content.