By Christina L. Scott, J.D.
There are many things that can inadvertently or purposefully sabotage a mediation. Sabotage should never be purposeful in a mediation, however the “reality check” says that at times it might be. Here are the big 3:
Engaging in Discovery
The purpose of mediation is to engage in discussions to move towards an agreement through the process of negotiation and compromise. Mediation is not Discovery or a fishing expedition. However, some parties and counsel choose to use the process as a means to gather information with no intent to settle during mediation. This is unproductive and a waste of everyone’s time and resources. If there are missing documents or other information to review, it should be gathered several days prior to mediation, not the evening before or the morning of. Realizing that you might need additional information requires preparation, which is the next point. Mediation often works best when the Discovery process is closed, however this is not always possible. Counsel should implore clients to produce all relevant documents in a timely manner so that they get the most out of the mediation process.
Lack of Preparation
Preparation, preparation, preparation! One of the many keys to a successful mediation and the lack thereof can sabotage it as well. Good attorneys and clients are always prepared for mediation. If crucial documents are missing, resist the urge to wait until the last minute to request them from the other side. Be sure that your client has produced all his/her documents and knows what to expect from mediation. Some attorneys prepare their mediation documents just like they prepare for trial. Doing this can only increase your chances of settlement and is a good rule of thumb.
Lack of Flexibility (a/k/a “Trial” Happy)
A lack of flexibility because someone is “itching” to try the case, can sabotage mediation. Infatuation with a legal nuance or rare issue can derail a mediation as well. In these instances, focus should remain on the self-determination of the client and what they desire to do. The client is the one that ultimately has to live with the decision long after counsel is out of the picture. The solution in mediation is sometimes the thing that neither party wants to do but it resolves the case. Maintaining openness and flexibility to a resolution that the court may not consider, can often be a win/win for both parties.