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The most common causes of a failed mediation have been identified as:
1. Absence of persons with real settlement authority;
2. Lack of a genuine intent to settle; and
3. Choosing the wrong time to mediate.
This paper deals with settlement authority, which is the most critical of the three.
Settlement authority means the authority to agree to whatever is necessary and prudent in order to dispose of the case. Often we see client representatives being sent to mediation who purport to have full authority to settle but who in reality have only limited authority based upon their side's unilateral evaluation of the dispute. Any attempt by the mediator or the other side to convince them that the case should really be settled on terms that are beyond that authority is generally futile.
Before long the lack of authority becomes apparent to everyone. If the other side is fully empowered to settle, they will become justifiably upset at the uneven playing field and will probably lose interest in further mediation. Attempts to bring them back to the table at a later time may not succeed.
Sometimes it is not possible to have the person present who has unlimited discretion to settle. In such cases I generally recommend that the mediation be rescheduled until that person is available. As a last resort, you may have to send someone with a reasonable amount of authority and make arrangements to have the ultimate decision-maker available on standby or by telephone. In that event be sure to secure the agreement of the mediator and the other parties in advance.
It is the mediator's job to require that the individuals who are authorized to settle the case will be present. If you really want to have a successful mediation, do not try to mislead the mediator or the other side about this critical element of the process.
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
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