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Post-Mediation Tunnel Vision: Caution, it can hurt your client!

February 11, 2014

Remember that enlightened feeling you felt during mediation as your Mediator assisted you in understanding, even if not agreeing to, the strengths of your opposition’s position?   And,  remember how he/she helped you to even observe a few weaknesses of your own position?  That balanced, open-minded feeling, by both sides, was critical to any chance of your mediation success by voluntary resolution.

Most litigators simply don’t have open-mindedness entering mediation.   And, all too many, if their mediator  helped them find it,  forget it if their mediation efforts fail.

My strong suggestion:  Don’t!   Keep that same open-mindedness your developed in mediation, throughout the entire post-mediation period, even as your failed mediation is pushed further and further into the past.

And, particularly, during trial.  Hold on to your objectivity, even as you await the jury!

A very wise man once said, “It ain’t over, until it’s over”.

Anyone who is at all knowledgable about trial practice should easily relate.

Recently, a person for whom I had mediated a significant matter to an “almost” resolution and even kept in constant contact with the opposing parties as they ended by instead choosing the trial route to resolution, reported back to me.  (A kindness any mediator would appreciate.)  He also suggested I might want to consider publishing a blog reminding parties (and their counsel) that if they are not successful at mediation, to try not to lose their mediation objectivity, post-mediation, and particularly during trial.  He candidly admitted, that he had, it had ended badly (for his client) and he wanted a reminder for all that true professionals should always keep an objective, open mind, regardless of events that can occur post-mediation.

This person is a highly professional, very skilled and experienced trial lawyer and I suspect he rarely errs.  And, I know well that he really cares about his responsibilities to his clients.  However, he (and you) are human.  And, if you are human, unless you really think about it, prepare for it and make the real effort to avoid it, you will also err in losing your mediation objectivity as you return to the trial arena.

Has it happened to you?

Have you had those pre-trial and trial moments, failing voluntary resolution, when, it seems, everything is simply going your way?  You love your judge and his/her rulings; you love your jury.  Your witnesses are perfect, loved by the jury and untouched by your opponent efforts.  Your opposition’s witnesses seem to crumble in your perfect cross-examination.  Your post-trial motions are all accepted; none for the defense.  And, your judge accepts every jury instruction and every proposed verdict form.

Why would you settle, NOW?  What could go wrong?  (And, won’t your opponent wish they had taken your last offer to settle?)

And, then, the jury returns.

And you, (not the judge, by the way), is shocked.  And, of course, so are your clients who also had lost their objectivity.

What went wrong?


It is just that those facts that you had seen a bit more clearly, and open-mindedly, at mediation, were still the facts the jury saw.   And, not through your rose-colored glasses.  And, the jury, although loving you and your witnesses, still had to deal with those objective facts and not their (apparent) love affair with you or your clients.

And, the applicable law that had seemed a bit more balanced at mediation, was still balanced.  The judge made the rulings based upon the law, not your argument.  The law does not change because you are beautiful (or your client is beautiful.)

And the value of your clients claim (or defense) that had gotten  you so close to resolution at mediation, had not changed simply because you were “doing so well”.    The jury’s decision was simply a lot closer to your objective mediation resolution range than that of your  jury argument (clearly puffed up because the opposition was doing so poorly).

You can put lipstick on a pig, but it is still a pig!

Nothing at trial actually changed from the day of mediation of that claim, except the open-mindedness of mediation was lost to the tunnel-vision of trial.

It happens to the best.

Years ago I heard a fellow-lawyer, frankly a competitor who I did not evaluate that highly, described as one “who always knew where he was”.  This simple, obvious compliment was intended to suggest that no matter his outward demeanor or how his trial was seemingly going to him or others, that he never seemed to lose sight of his goals established long before beginning trial.

In short, he did not get carried away by the immediate present.  He always kept an open-mind as to the value of his clients claim and the best end-interest of his client.

And, thus he settled a number of disputes in almost every stage of litigation, including, on occasion, even while the jury was deliberating!

He knew, obviously, that a dispute that was fairly valued when all were objective, did not lose or gain value just because a matter entered the high drama of the trial process.

He never let any matter go to any decision by a judge, arbitrator or jury without a final inquiry as to whether a voluntary resolution was still possible.

Even though the required advocacy of any trial lawyer makes it foreseeable that you will take on an increasingly one-sided view as you near and enter trial, SOMEONE on your side of any issue must keep a totally open mind until THAT someone else makes the final decision to submit that issue to your final decision-maker. 

It is not a weakness to remain objective.  It is not a weakness to make sure every reasonable opportunity for a then-fair voluntary resolution is afforded your client before submitting their claim or defense to any jury, arbitrator or judge.

If not, you will also foreseeably miss that last golden opportunity that is always presented, before a jury’s or judge’s decision;  a voluntary resolution that is much more acceptable to all (clients) rather than “strangers making the decision for you.”

In summary, even if you fail at your last opportunity at mediation, voluntary resolution should always remain an option.  Just remember to keep that same mediation open mind you once had until you have no choice but to turn the decision over to a jury.

Post-mediation tunnel vision can hurt!

Dan, from Orlando-Winter Park, Florida.

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