by Christina L. Scott, J.D.
Mediation is the best choice for resolving conflict and as a neutral, I love to do just that. Sometimes, however, there are circumstances and factors that are almost certain to create impasse or no agreement. Here they are:
Lack of Preparation
Preparation is one of the many keys to a successful mediation and the lack thereof can sabotage it as well. Preparation is not just having all the relevant discovery you need, but also preparing your client for the mediation by managing his/her expectations about the process and the time it takes. If I arrive for a divorce mediation and one of the parties says they can only mediate for one hour, I’m keenly aware that the attorney has not adequately prepared their client. Similarly, arriving at mediation with no clue that you will have to move off your position is also a problem. Situations like these are frustrating for everyone, a huge waste of time, and typically a guaranteed impasse. Though we are mediators, most of us are also business owners who value time and resources. We would rather not reserve time on our calendars for parties who are not prepared to take mediation seriously.
Additional Terms after Agreement
After hours upon hours of progress, a deal can fall apart when one side seeks to add “just one more thing” to a full agreement. Most mediators have seen this scenario more times than we would like. Let me paint the picture for you: You’ve been mediating for 8 hours and deep in the process of having the agreement drafted. Now at the end, one party has one more issue to discuss…ugh! When making offers, please help the mediator by conveying the entire offer. Please do not purposely hold back the “one more thing” under the guise of “we forgot to tell you”, thinking that the other side will agree at the 9th hour. It does not always work, could be disastrous and lead to impasse. As a mediator, I’ve been able to overcome this issue and help parties get to agreement, but it typically takes another hour or longer. There is no benefit in wasting the parties’ time and money. I’ve found that the mantra, “Say what you mean and mean what you say”, works well in mediation. I champion efficiency and time management and I’ve found that good attorneys do likewise.
Forcing Mediator Selection
Everything in mediation is by agreement and that includes the selection of the mediator. Typically, in these cases, the attorney represented side will propose a mediator because many self-represented parties may not know any. As a neutral, I need express agreement and consent of the self-represented parties before we select dates and move forward. Problems arise when the self-represented party, who has been ordered to mediate, refuses to respond. Sometimes, the attorney will then seek to request an order naming the mediator. Working with self-represented parties can be frustrating and most attorneys are trying to move the case forward. However, forcing the selection of the mediator is not helpful and it places the mediator in an uncomfortable position. Filing such a motion does not foster a spirit of cooperation or compromise, two factors that are foundational to successful mediation. In instances like these, the case is more likely to move forward in a positive manner if the parties allow the court to select the mediator.