August 08, 2013 Articles

Can Sanctions Be Applied for Bad Faith in Court-Ordered Mediation?

By Charles F. Forer

Editor's note: This article describes a hypothetical situation.

Bob has had it with adversaries who act in bad faith in court-ordered mediation and get away with it. Last week, Bob and his client went to a court-ordered mediation session. Bob's client, the plaintiff in a commercial dispute, sought seven-figure damages arising out of the defendant's "shocking" and "illconsidered" breach of contract. (Bob's words.) Bob had counseled his client, before the mediation, that "you have to compromise; that is what mediation is all about." However, Bob assured his client, "There is no good reason why we shouldn't be able to settle this case for at least $1 million."

The mediation was a disaster. The other side refused to make any settlement offer in response to what Bob touted was a strong case of liability. The session ended after a few hours. Bob spent the rest of the day answering his client's questions: "Why did I waste my time to attend this session? Why do I have to pay you for this wasteful exercise?"

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