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“But, they asked for this mediation!”

January 7, 2013

Unsuccessful (i.e., failure of resolution) mediations bring any number of cries of anguish from the disappointed side or sides.  And, usually a great deal of finger-pointing.

One of the most common post-failed mediation statements that mediators hear from the disappointed side is, “but they asked for the mediation!”. 

The unspoken complaint in this comment is that since the opposition “asked” for that mediation, they must have intended it for the immediate full resolution of the dispute.   And, the fact that not only was the dispute not resolved, but the total offers made by the opposition were “not even close” to any conceivable resolution must mean that something “went wrong” in the mediation

Not at all true.   Clearly, something “went right” for someone, at least for that mediation or a different result simply would have occurred!  (And, I am willing to bet it “went right” for the party that asked for the mediation!)

And, the sooner both sides recognize that mediation has many purposes, not simply for final resolution, the less anguish for all.  More importantly, the sooner mediating participants learn to properly distinguish “early” mediations from “resolution” mediations, the better.

This frequent “misunderstanding” is also a common denominator with so-called “voluntary” mediations.  Assuming there is any such thing as a “voluntary mediation”  in any matter already in litigation, you should also beware of any mediation characterized by either side as “voluntary”.  See, “Mediation Certificate of Authority:  More Thoughts on More Questions Being Raised“, May 31, 2012. 

And, to many very capable lawyers, the term “voluntary mediation” is simply a synonym for “EARLY mediation”.  Also, not usually a harbinger for full-value resolution outcomes.  See, “Early Mediations Require Claimants Deep Discounting”, August 29, 2011.

It is understandable that any claimant would intend that every mediation was to be used solely for resolution.  Every claimant wants closure and the sooner the better.

But, claimants must understand that their defendant opposition fully intend to use every available option to them to discover everything they can about any claim against them and as early and as cheaply as possible before they wish to voluntarily pay anything.  And, certainly as long as the discovery is cheaper than premature payment, discovery will always prevail over early resolution.

Guess what is early and cheap discovery?  Right, Mediation!

What better way for your client to directly visualize those who will be in the witness chair at any trial?  What better way for them to gauge the strength of their opponents’ ability to withstand the pressures of negotiation or even trial than an early sampling of their resolve?

What better way to find out the oppositions’ grasp of the factual and legal positions of the dispute?  And to evaluate, in advance, their exhibits and their actual preparation for trial?

I will continue to contend for anyone who follows my “suggestions” that any mediation scheduled without a trial scheduled reasonably soon thereafter, must assume that that mediation is likely going to be used for practically everything BUT resolution.

There are exceptions, of course.  See, “The Weaker Your Position, The Earlier You Should Mediate”,  December 13, 2010.   But, if you really keep track of your “early” mediations (i.e. without trial dates set) and analyze their outcome, you will also soon begin to see the pattern I repeatedly suggest.

There is nothing wrong with early and even multiple mediations.  In fact, why wouldn’t anyone use such mediations for their own inexpensive education?  And, it should be equally available to either side in any dispute.

But, it is imperative to your “mediation sanity” that you recognize the difference between an early discovery mediation and one where your opposition seems destined to give you a real option to trial to consider.

Mediation is simply another valuable tool for any litigator on either side of any dispute.

Accordingly, the next time your opposition “asks” you to schedule mediation, simply understand that THEY have a purpose in mind for their client for this mediation.  Just make sure YOU have an equally valid one for your client that does not necessarily include final resolution!

Dan, from Lakeland, Florida.

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