Author/Source/Copyright: Marc FongLawyer, Mediator, Arbitrator, Past Chair-Alternative Dispute Resolution Section at Alameda County Bar Association
I recently conducted a survey of experienced mediators and asked why they thought a mediation might fail. The answers were not surprising and common themes emerged. I offer them here as a guideline and urge your consideration when a mediated resolution of your case is the goal.
1. Real decision makers are not present. Make sure all parties, including insurance carriers, are invited and attend the mediation.
2. Some cases are mediated too early and the parties have insufficient information to make a knowing and informed decision about settlement options. Make sure you have completed essential discovery so realistic assessments can be made about the case and issues involved.
3 .Unrealistic understanding of the risks involved. Attorneys and their clients should have a thorough understanding of the litigation costs and a realistic assessment of their chances at trial, prior to the mediation. Keep in mind that litigation is a zero sum game. Usually only on side emerges victorious and both sides will have spent a lot of money going through the trial process. Worthwhile spending time on figuring out the merits and costs of going forward.
4. The parties should try to contain some of the emotion (e.g. underlying anger) that may blind them from making rational decisions. (This is sometimes difficult and must be approached with some sensitivity. This will be the subject of a future post.)
5. Lack of preparation by the attorneys and parties.
6. Rookie negotiation syndrome-thinking that you need to bargain hard to succeed. (i.e. Positional bargaining which fails to address the needs and interests of the client.)