Mediation Pitfalls: How to Avoid Them

Nearly every civil case in California is expected to go thorough some form of informal dispute resolution process. In fact, most trial judges will tell the litigants that the case will not start trial until there has been some attempt to resolve it. Therefore, it should come as no surprise that mediation has become an integral and successful part of the dispute resolution forum.

But before you incur the expense of mediation, as well as the time commitment, keep in mind these common pitfalls that in my experience significantly reduce your chances at success at mediation.

1. Being Unprepared. Any good boy scout knows the motto for the organization is “Be Prepared.” Certainly, every successful litigator embraces that motto throughout the entire lawsuit. So why do so many litigants arrive at mediation unprepared? This is a great opportunity for you to utilize the mediator’s expertise in communicating the strengths of your case to the other side. But if you don’t know all of the strengths of your case--as well as its weaknesses--you are missing out on a prime opportunity to resolve the case at a time before the expenses of the lawsuit increase exponentially. Preparation begins weeks if not months before the mediation starts. It includes conducting important discovery, obtaining critical documents and educating your client on the mediation process. The best proof of being prepared is a concise, well-written brief that tallow the mediator to hit the ground running once the mediation starts, with a pertinent summary of the facts, relevant law, previous settlement discussions, and what your client seeks during the mediation. Preparation gives you the best chance at a successful mediation.

2. Failing to Educate the Opponent. Oftentimes, parties submit “confidential” mediation briefs. While litigators—like good poker players—like to keep their cards close to the vest, consideration should be given to what you hope to accomplish by not revealing important information. If you want the mediator to advocate the strong points of your case, then why would you keep them a secret? The mediator is not going to divulge anything you have identified as confidential, so the information cannot be utilized to your benefit during the mediation. Your chances of a successful mediation increase when you tell the other side how great your case is, both factually and legally, so that the opponent can complete the necessary evaluation to arrive at mediation with reasonable expectations. I am not suggesting that there may be facts you do not want shared with the other side, but keeping the opponent in the dark until the mediation has started does not necessarily increase your chances at settlement.

3. “Surprising” the Opponent. This third common pitfall is a corollary to the first two points above. Namely, you are not doing yourself or your client any favors by submitting a brief to your opponent the day before the mediation that now contains new critical information, that will greatly affect the opponent’s evaluation of the claim. The best example of this is in a personal injury case, when you present the defense counsel with a new medical bill or report that dramatically changes the value of your case. Assuming there is an insurance company involved, the insurer needs ample time to evaluate such a significant change, especially if you expect the insurer to show up with ample authority. Obviously, the new information is sometimes out of your control. The client failed to tell you he saw the doctor again, or the doctor did not get the report to you fast enough. When this happens, it may be more prudent to reschedule the mediation to allow your opponent to digest the information and be fully prepared to mediate. Alternatively, let everyone know that this may be the first of two mediation sessions.

4. Not Having the Right Decisionmaker. Nothing will bring a mediation to a grinding halt quicker than the statement “I don’t have that kind of authority.” Generally, this comes from the insurance representative who was only given X in monetary authority and the supervisor is on the east coast, on vacation, or doesn’t work on Tuesdays. If you are the defense attorney, you should ensure that someone with ample authority accompanies you to the mediation, or alternatively, that the superior who does is always available during the mediation. The plaintiff can perhaps mitigate this possibility as well by avoiding the pitfalls mentioned above. But the plaintiff attorney also needs to make sure the right decisionmaker is present as well. This means knowing what liens exist and how you intend to resolve them. Does your client’s spouse need to be involved? Have you made sure you have all costs incurred so you can show your client what the net recovery will be? Everyone at the mediation should be striving for informed, reasoned consent. This means having the right people present.

There of course may be other hazards you will encounter both before, during and after mediation. But keeping in mind the few addressed above will increase your chances at a meaningful session, and hopefully a resolution you and your client can accept.