February 2014 Bar Bulletin
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February 2014 Bar Bulletin

Common Obstacles to a Successful Mediation

By Carolyn Cairns


There are pros and cons to every mediation. Unfortunately, the negatives often can torpedo the process These frequently recurring issues make it challenging to successfully resolve cases.

One or more of the parties has sent the wrong client representative. Federal Local Rule 39.1(c)(5)(E) requires that the parties and insurers send representatives who not only have authority to settle, but have the authority to adjust pre-existing settlement authority if necessary. It is not sufficient to send a representative who has been given a number above which he or she may not go to settle the case, or has been provided with other deal point bottom lines.

While there is no corresponding state court rule, the failure to send representatives who have the authority required by the federal rule can either doom a mediation or require phone calls to higher-level people who are inevitably in different time zones and who have not had the benefit of participating fully in the day's discussions.

The reasons parties sometimes do not send a person with the appropriate gravitas to settle a case vary; the heavyweight may be too busy or too far away to want to participate in the mediation, but yet does not trust anyone else to make the decision. Other times the decision is strategic, perhaps intended to send a message to the other side that the party thinks so little of its opponent's case that they do not want to dignify it with a high-level person.

Lawyers who do not have subject matter expertise. This could be a problem of a lawyer's inexperience or of dabbling in an unfamiliar practice area. Often the result is that the lawyer does not have the experience to correctly assess the settlement value of a case, relies on jury verdicts and gives the client unrealistic expectations as to what might be achieved at mediation.

Where the mediator does have subject matter expertise, he or she is then placed in the awkward position of having to explain the law without advising the lawyer's client, embarrassing the lawyer or driving a wedge between lawyer and client. The lawyer who is inexperienced but wise will seek out a lawyer who is experienced in the subject matter and seek that lawyer's input as to a realistic settlement range. Even if you have to buy an hour or so of a lawyer's time, it is money well spent.

Obviously, this exercise is only useful if you are able to present your case in a neutral manner, warts and all. If you simply highlight the strengths of your client's case, you are cheating at solitaire.

Lawyers who are afraid of their clients. It is a lawyer's job to discuss resolution with the client early and periodically throughout litigation. It saves the client money, as well as wear and tear. It is the lawyer's job to give the client the bad news as well as the good. The client should not find out for the first time at mediation that he does not have a slam-dunk case.

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