I had a troubling mediation the other day. I knew something was amiss when I did not get any mediation briefs. Thus, I had no clue what the case was about, much less the issues. While submitting a brief helps me learn about the case, more importantly, it forces the parties to think and analyze their case rather than “winging it.”
So, the appointed time came, and only the plaintiff’s counsel appeared on Zoom. I asked the plaintiff’s counsel if her client—the actual plaintiff—would be appearing. The response was “no.”
Further, defense counsel was absent, so I contacted her to see if she intended to mediate. She did, but could not find the link, so I provided it again.
I then spoke with the plaintiff’s counsel, who gave me a chronology of the case and her views on why the matter is in litigation and has not been settled.
When I spoke with defense counsel, I discovered that the plaintiff’s counsel had put a particular “spin” on the case, leaving out a few salient, if not crucial, facts. According to the defense, it had offered and tried to settle the case, even offering more than the amount required under the particular statute. As the defense counsel explained, plaintiff‘s counsel is seeking a lot more based on a particular reading of the statute.
So, after speaking with both counsel separately, I returned to the plaintiff’s counsel to find out what the demand was. She gave me a lump sum amount. When I asked if she was willing to break it down into its components, she declined.
So, I returned to the defense counsel and provided the lump sum demand. She advised that she had to speak with her client. After a few moments, she stated that she was unable to reach her client and thus could not provide a response.
We will have to end the mediation, and defense counsel will contact me once she speaks with her client.
As a result, I had no opportunity to speak with plaintiff’s counsel about her particular reading of the statute or how a court might consider the matter. The magic of the moment was lost.
So, the mediation ended… before it really began.
While counsel will return to court and tell the court that they “mediated”, I question the truthfulness of that statement.
… Just something to think about.
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