How To Make Use Of A Useless Mediation


Rebecca A. Young practices civil litigation with the law firm of Owens & Millsaps, LLP in Tuscaloosa, Alabama.  She can be reached at

The mediation has just begun and already the parties are fed-up and ready to go home.  There is no way you are leaving today with a resolution of the case. What a waste! Your clients have traveled all the way here and you have paid a mediator for the day—all for nothing.  This was useless.

If you have ever left a mediation feeling this way or approached a mediation feeling this way, then you may be missing out on the full use of the mediation. There are several ways to make use of a mediation that seems doomed to failure. Understandably, not every case is postured for final settlement when it goes to mediation. This may be the result of a premature mediation order from the court or the result of very difficult parties who are worlds apart in their evaluation of the dispute or entangled in deep emotions arising from the dispute. Regardless the reason, a mediation can be useful even when it does not produce a final settlement between the parties.

Mediation is too often thought of as serving the sole function of producing a final settlement of the case. This approach underutilizes mediation. A mediation should instead be approached like a Swiss Army knife which possesses several different tools to serve multiple functions.  Sometimes the mediation functions like a sharp blade cutting through all the parties’ disagreements allowing them to reach a final resolution. In many other instances, the mediation functions by using different tools that can pry open and unscrew secondary issues that are preventing the parties from resolving their dispute.  

Here are a few suggestions for making use of a mediation when it looks like a final resolution of the case is not likely.

_   Break It Up

When a mediation is approached with the sole goal of complete resolution, it is easy for the opposing sides to become overwhelmed and pessimistic about achieving this goal. This is especially true when there is a big gap of disagreement between the parties.  In these instances, it is helpful to close that gap by breaking up various aspects of the disagreement. By dissecting the dispute and handling it in smaller pieces, opposing parties will feel less overwhelmed and become more confident in reaching a resolution.

Breaking the dispute into several pieces helps to identify crucial matters that can be agreed on by the parties. For example, the parties may agree on the amount of damages, but contest the aspect of causation. This simple dissection helps to narrow the issues for mediation and creates momentum for reaching a final resolution.  This dissection can also identify aspects of the case that are not necessarily elements of the parties’ claims but are important issues that need to be resolved in order to reach a final resolution.  When the parties appear to have arrived at a dead end in negotiating the primary elements of their dispute, suggest negotiating the secondary aspects of the case that you have identified. 

_    Suggest Negotiationing Other Aspects Of The Case

Even when the parties cannot agree on the primary elements of their dispute, they may be able to reach agreements on secondary issues such as discovery, evidence admissibility,  liens, or subrogation rights.  These matters often correlate with negotiating a final agreement. 

When a case is in mediation, there commonly exist discovery issues that need to be addressed.  If a final settlement of the claims does not look probable or possible, suggest that the parties discuss the discovery issues.  This effort will save you the time of addressing these issues with opposing counsel later.  Additionally, you will have the assistance of the mediator to facilitate the sometimes hostile discovery battle.  Even if you are unable to reach resolutions on the discovery issues, your efforts to do this during mediation will most likely score you brownie points with the court.       

Another example of a secondary issue that can be addressed in mediation is a dispute regarding the admissibility of evidence.  The mediation can be an excellent forum for addressing potential evidence objections or objections to potential witnesses.  Many courts require that parties discuss and attempt to resolve these issues prior to trial for the purpose of submitting a joint pre-trial memorandum.  Similar to the discovery disputes, using the mediation to preemptively address these issues is efficient and effective.  Further, it forces the parties to continue to think about their case and consider what is ahead in the event that the matter continues through the litigation process.  While the parties consider their options outside of mediation, they may find themselves rethinking their original positions and navigate back towards reaching a final resolution of the dispute.

Additional issues that can be addressed in mediation are subrogation rights and liens. For example, in a personal injury dispute, issues with Medicare and/or Medicaid liens often arise. Given the most recent developments in this area, defendants find themselves placing increased emphasis on ensuring the proper compliance with and payment of any existing liens.  Resolving how these issues will be handled is critical to being able to reach a final agreement. In mass actions, these compliance issues can be extremely complex and can necessitate that substantial time and funds be expended to ensure proper satisfaction of liens.  For these reasons, this issue becomes a hot point of negotiation and must be addressed to reach a final resolution.   

Before suggesting that secondary issues be addressed at the mediation, prepare yourself by strategically prioritizing and categorizing the issues that you may want to address. Some matters may be best reserved for later in the mediation, whereas others are important to bring up early in the process. During a difficult mediation, you want to continually promote open dialogue and a willingness to reach resolution.  If you think engaging the other side in talks about discovery disagreements will only ruffle their feathers, then leave it alone.  You do not want to do anything to create more adversity.  If, however, you have planned to make some concessions regarding a secondary issue that you believe would promote good faith between the parties, then bring up that issue as an opportunity to exhibit your party’s willingness to make compromises.   

_    Ask Questions And Exchange Information

In some situations, when the mediation looks like it has hit a brick wall, the parties should try to keep the mediation on track by asking questions and exchanging information that spark new avenues for resolution. A party’s unwillingness or inability to settle disputes is often blamed on a lack of information.  When this excuse is provided, talk about it and make plans to obtain and exchange this information.

Most importantly, ask questions in an attempt to figure out what the other side wants. Often parties assume the answers to the most basic and important questions. Do not make assumptions about the other side’s positions.  Continue to ask them to provide you with their positions on all the aspects of the case.  You cannot reach a resolution if the parties have not exchanged with one another their desired outcome for the dispute.

_    Make Plans With Co-counsel

If you are in multi-party litigation, a stagnant mediation is a great opportunity to talk with co-counsel.  It is an opportunity to make litigation plans together.  It is also an opportunity to negotiate with them and figure out your joint strategies, not only for litigation, but for dispute resolution.  While engaging in these conversations, the parties may identify facts and issues that re-open the door to resolution with the opposing party. 

_    Talk With Your Client

Likewise, there is nothing like a drawn out mediation to provide for some attorney-client bonding time.  Use the mediation to educate your client on the difficulties that lay ahead in moving forward with litigation. Of course, some version of this exchange should occur with your client prior to the mediation. However, the mediation will most likely provide for more substantial one-on-one time with your client that allows you to discuss the case and address the opposing party’s positions. Further, the mediator, acting as a neutral party, can provide a fresh prospective on the dispute, which is helpful for both the client and attorney. This communication can help break through the barriers of even the most difficult and disagreeable party.       

 In addition to talking with your client about their position in the dispute, you can use the opportunity to plan and strategize with your client. Doing this may spark new ideas or options for resolving the current dispute.  At the very least, it prepares you for handling the matter in the event that a final resolution is not reached.

The above tips are common sense ways to make the most of your mediations and help you become a better problem solver.  When you prepare for mediation, keep these alternative approaches to the dispute in mind and evaluate the ways in which you can use the mediation.  Be sure to communicate to the mediator your plans to use any alternative approaches and your openness to address secondary issues that are part of the case.