Have you ever had a mediation that’s just a non-starter? A dud? DOA?
When I do (and every now and then I do), I ask the lawyers why they decided to mediate. Why did they think the time was right?
Overwhelmingly, they answer that while they didn’t think the time was right at all, the judge did—and ordered them into the process.
Though ordering people to mediate may have no cost to the court, it has plenty of cost to you. Most obviously, there’s the mediator’s fee. Then there’s the value of your time to prepare and attend. Whether you’re billing hourly or on a contingent fee, time is money. There’s also the inconvenience to your clients. And a premature mediation can disrupt the pace of litigation and distract you from necessary discovery, motion practice, and trial prep.
If you have to mediate to satisfy the court, what can you do to make it productive? Too often, it’s a game of mutually self-defeating prophecies. “They’re not going to take it seriously—why should we?”
There may be ways to break that cycle. Talk to opposing counsel, with the mediator as intermediary as necessary. Try to agree to:
Perhaps most importantly, ask whether each side will agree to participate in the mediator’s fee. Will each side, literally, buy in to the mediation process? As my high school buddy Alan Kaye, a hugely successful insurance agent, once put it to me, “People don’t pay for what they value. They value what they pay for.” Parties who pay tend to take mediations far more seriously.
What if, though, the lawyers agree the time truly is not right? What if they just want to check-the-box and satisfy their judge?
In that circumstance, consider a “mealtime mediation.” Meet opposing counsel and the mediator for breakfast or lunch. Familiarize the mediator with the case. Discuss what it would take to put the case in a better posture for mediation. Agree on a deadline to do those things. Report your compliance with the court’s order.
Then come back and mediate when it’s more likely to be productive. I have done many “mealtime mediations,” always at no charge (though it’s nice when the lawyers split the cost of my omelet), and they have always worked out well.
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All this begs an important question, though: Why do judges order people to mediate in the first place?
In days of yore, when lawyers were unfamiliar with mediation, yes, it might have made sense to order people to mediate.
But these days, lawyers are well familiar with mediation. They know when the time is right far better than their judge. That’s because the timing has much more to do with the emotional state of the parties than with the factual or legal state of the record.
The key question? “Are the parties about ready to put this behind them?” And who is best equipped to answer that question? The lawyers, simply because they know the parties far better than the judge does.
Are lawyers concerned that when they suggest mediation, they signal weakness? I doubt it.
First, if a case has weaknesses, chances are everyone already knows it.
Second, in those days of yore when lawyers were unfamiliar with mediation, lawyers seemed to have no trouble suggesting unfacilitated settlement talks. We know this because it has always been conventional wisdom that 90% or more of cases settled. There should be no difference just because a mediator is now involved.
Finally, mediation has become an accepted part of the litigation landscape. It may not be used in every case, but it is routinely considered.
Is there still a place for judicial involvement? Yes, in the limited circumstance where a lawyer needs cover to suggest mediation to a reluctant client. Judges can address this with more subtlety than by ordering people to mediate. Judges can ask lawyers to meet and confer about the advisability of mediation and report back to the court. This gives lawyers the necessary cover to tell a client the judge wants them to mediate, without a judge using coercion.
That’s what mediation is supposed to be all about: Voluntariness, self-determination, personal responsibility. This is how we can harness judicial involvement to achieve the best outcomes for all.
Sometimes I already know from written submissions that the court ordered early mediation. More often I learn it when in mediation tell me they are not expecting much of the day because the mediation session was court-ordered or they learn who is there for the other side and say that they are going to report them to the judge for having the wrong people there. Whatever the timing and manner whereby I learn that the mediation session is court-ordered, it is always useful to know.
As your mediator, my job is to meet all of you where you are, and in court-ordered mediation it frequently is where you don’t want to be. We can spend the sessions commiserating about how unhelpful it is that courts coerce litigants into mediating “too early” or we can roll up our sleeves and figure out a way to make the session useful.
In discussing how to make the session useful it’s helpful to know that parties resist going to mediation when courts have ordered it for various reasons including:
Nevertheless, the court-ordered mediation can be worthwhile. It is an opportunity to talk with an impartial person about the case as it stands at that time. Discovery can be streamlined or defined. Motion practice can be agreed upon.
At a minimum, participating when the court requires it gets parties thinking about the alternatives to trial and appeal as resolution mechanisms. Settlement is an important part of litigation evaluation and the court-ordered mediation is a time for parties to reflect on whether there is value to the alternative to trial.
Mediation is also an opportunity for counsel and clients to get to know each other better and to consider how they work together. It is also an opportunity to think together about the matter differently than when they are in the meetings that are only their side—the mediator safely brings the voice of “what if” alternatives into the conversation.
… and sometimes the case settles!
Absent court-ordered mediation, some cases would not have a mediator because one or the other party does not have, or will not allocate, resources to pay for mediation.
All of the above is why I serve on several mediation panels at the trial and appellate level.
