by Richard M. Hunt
In a perfect world, the parties arrive at mediation ready, willing, and able to settle whatever dispute took them to court and in possession of all the information needed to evaluate the case and make good decisions. Also, in a perfect world, we all ride our pet unicorns to work. However, in the real world, things go wrong. Mediation may occur too soon for the parties to understand their risks or so late it seems not to matter. One or both of the parties may resent being compelled to attend a court-ordered mediation and arrive with a chip on a shoulder. Sometimes the lawyers themselves create obstacles to resolution. Whatever the reason, mediation may fail to produce a settlement, leaving the parties with what looks like nothing for their time and expense.
Failure can, however, be turned to success. Good mediators know this and follow up with the parties for days or weeks after a mediation fails. Even without the mediator’s help, attorneys who know that a settlement is in their client’s best interest can use mediation as a springboard to a productive settlement discussion.
Turning what looks like a wasted day into a first step toward settlement starts with the day of mediation itself. Mediation may seem to be simply about making sure the other side knows what you think is wrong with their case and what is right with yours, or about making your client’s settlement requirements clear. However, listening is equally important. At mediation you can learn what the opponent believes are her most powerful arguments. Those are the arguments that will be the focus of discovery and briefing if mediation fails because you cannot win if you do not consider your opponent’s best claims. Those arguments are also the focus of your strategy for post-mediation settlement discussions. Knowing the obstacles you face is the first step to finding ways around them.
After a failed mediation, you should take a hard look at you and your client’s actions and strategies. Mediation can fail for many reasons, and likely was not simply the other side’s delusions or the mediator’s inadequacies. Ask yourself what you could have done differently in your communications with the mediator. If you feel like the mediator did not understand your case, try another approach or a different explanation after time for reflection. And remember your audience, which is not a judge or jury, but indirectly to your opponent, who is starting from the position that your client is wrong, and he is right. Litigators are not trained in this type of persuasion, which requires an adjustment of both attitude and technique.
You must also ask yourself whether or to what extent your client might have unrealistic expectations. It is critical to give your client an honest evaluation of the case, and there is nothing more difficult than giving your client the bad news that as the case progressed it got worse, not better. Ideally this is done before mediation, but a failed mediation means that a presumably good opposing lawyer has a significantly different view of the case. One of you is at least partly wrong, and it is worth thinking about whether it is you. Even if you conclude that the other lawyer is the problem, understanding why he or she does not see the case the “right” way will help you decide how to handle future negotiations.
Finally, strike while the iron is hot. Just as parties sometimes regret the deal they made after mediation, they may also regret having missed an opportunity to settle, especially when they paid for a failed mediation. Regret about a wasted day can be used both to move the opposing party and, if appropriate, move your own client toward a more reasonable position. If the mediator does not call you, you can always call the mediator with the new ideas and approaches you thought of after the mediation. If you were dissatisfied with the mediator, you can also call opposing counsel directly. Frustration with the mediator may be the common ground that leads to a more productive discussion of settlement with your opponent.
Mediation failures can be turned into success. Simply use that failure as a learning experience and opportunity to do better in post-mediation settlement discussions.
Richard M. Hunt is a partner at Hunt Huey PLLC. He can be reached at firstname.lastname@example.org.