In November 2006, I wrote a blog entitled “Preparing For Mediation.” Its essence was that in order for a mediation to be successful (i.e. resolve the dispute), each party must prepare for the mediation. Otherwise, the mediation will end in frustration and disappointment.

I visit this topic again because it bears emphasis. If each party to the dispute is not apprised of at least the major strengths and weaknesses of her case prior to attending the mediation (i.e. communication and preparation), the mediation will, in all probability, be fruitless and a waste of time.

Why is this topic so important? Because it happened again last week. Once more, I was mediating a matter filed in court so that the plaintiff, defendant and their respective counsel were all present.

Evidently, several weeks prior to the mediation, the defense attorney had a conversation with one of the plaintiff’s counsel in which she pointed out that the plaintiff did not have a case: the law plaintiff was suing under did not apply to plaintiff. The plaintiff attorney responded by stating she would look into it to determine if, indeed, whether the statute was applicable to her client.

Well. . . it seems that the plaintiff’s attorney apparently did not apprise either her client or the other attorneys in her firm about this conversation (i.e. lack of communication). Another attorney appeared with plaintiff at the mediation and due to this lack of communication (and perhaps lack of preparatory research), was wholly unprepared for what happened at the mediation.

I started the mediation with a joint session. After the plaintiff and her counsel made their introductory remarks, the defense attorney presented her view that plaintiff did not have a case at all because the statutes at issue were not applicable.

I could tell from the look on the face of both the plaintiff attorney and her client that they were completely taken aback by defense counsel’s words: these words were all new to each of them. The attorney was completely unaware and unprepared for the notion that her client might not fit within the statutes and thus might not have a case. Judging by the look on the client’s face, this point had not been discussed with the client.

Needless to say, the mediation went nowhere fast. The plaintiff’s attorney expressed a need to research the statutes and case law and confer with her colleagues about this new turn of events. No commitments could be made by plaintiff then and there. While the defendant was prepared to settle for a minimal sum, neither the plaintiff nor her client could so quickly and completely change their mindset to accept the fact that plaintiff had no case. They had walked into the mediation an hour earlier thinking they had a great case! How could they mentally and emotionally travel so quickly from having a “great case” to “no case!” They could not and to think otherwise, would have been unrealistic. Both plaintiff and counsel needed to think this through.

So. . . a valuable opportunity to resolve a dispute was lost. The plaintiff walked out angry and frustrated, and her attorney probably walked out feeling the same way . . . but for other reasons.

I do not know whether this matter will settle. There are various reasons why it should settle. But the end result is that a matter that could have been settled at mediation will proceed forward (at least for a little while) causing the parties to incur additional (and perhaps unnecessary) time and expense in litigation . . . simply because not everyone was prepared for the mediation.

. . . Just something to think about. . . once again!


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