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I Sound Like A Broken Record: Come Prepared

by Phyllis Pollack
October 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

If I had to list one thing that is a must for mediation, it would be “preparation.” I raise this again for the umpteenth time because I just conducted another mediation in which the lack of preparation by the plaintiff attorney controlled both the process and the outcome.

Plaintiff claimed she was laid off from her blue collar job due to a work injury disability. She had previously been injured on the job and claimed that while still injured, her supervisor required her to perform tasks that she was unable to do because of her injury; when she could not do them, she was laid off. As part of this claim, plaintiff alleged that although she was cleared by her doctor to return to work, it was with restrictions. Allegedly, her supervisor ignored the restrictions and made her perform tasks as though she were 100% well.

Defendant contended that the plaintiff was hired solely to work on a particular project and when the project was almost completed, the plaintiff, along with several others, was laid off.

Although trial is set to begin within the next five months, plaintiff’s counsel has conducted no discovery and so, while defendant’s counsel told plaintiff’s counsel of its position early on in the case, plaintiff’s counsel has done nothing to investigate defendant’s claim or to determine its veracity.

So, the parties came to mediation. Naturally, plaintiff told me what occurred from her perspective. I then held a separate session with the defendant and her counsel who told me what occurred from the defendant’s perspective asking me to share that perspective with plaintiff and her counsel. Instead, I suggested that counsel for both parties and I meet alone which we did. Defense counsel shared her information with plaintiff’s counsel who then requested to see documentation. For the next 2-3 hours, defendant had documents faxed to the mediation to be shown to plaintiff’s counsel. Then, counsel met together to discuss the documents; then plaintiff’s counsel met with her client to discuss them and then met with defense counsel once again with additional questions and requests for documentation. Defense counsel then met with her client to obtain the requested information and documents. Defendant then requested her office to fax more documents which her office did and so on and so on.

Finally, after about three hours of conducting “discovery,” plaintiff’s counsel realized that the “facts” were far different than what her client had told her, to the extent that the value of the case was far less than originally envisioned. However, plaintiff’s counsel realized that her client also had to process this sudden turn of events as well as the “truth” that her case has minimal value. So, after defense counsel responded to plaintiff’s monetary demand by offering far, far less money than anticipated, plaintiff’s counsel suggested that the mediation be continued to allow her client to process and come to grips with all of the “new” information. So, after more than 4 hours, the mediation session ended with a second session to be scheduled in the next week or so.

However, complicating this process is the fact that defendant intends to file a motion for summary judgment and must do so within the next two weeks. Unfortunately, the calendars of the parties are such that no one is available until after the date by which the motion must be filed.

Will defendant be inclined to settle after it has spent the time and money in preparing and filing the summary judgment motion? I do not know, but no doubt, defendant’s incentive to settle will be a lot less.

So while plaintiff’s counsel now realizes that the case needs to be settled, if a second session is held, most probably, the defendant will be inclined to pay even less to settle than it was willing to pay at the mediation (given the attorney’s fees and costs it has just expended on the motion for summary judgment).

Needless to say, plaintiff’s dilemma could have been completely avoided with preparation. Had plaintiff’s counsel conducted the necessary investigation/discovery prior to attending the mediation, the mediation process would have flowed smoothly rather than turning into a “discovery” or “information gathering” session, and the matter probably would have settled. But now, it is quite a quagmire.

Preparation, preparation, preparation,. . . I cannot say it often enough! It will make or break both a mediation and a settlement!

. . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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