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<xTITLE>Preparation And Communication</xTITLE>

Preparation And Communication

by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack


       In November 2006, I wrote a blog entitled “Preparing For Mediation.” Its essence was that in order for a mediation to be successful (i.e. resolve the dispute), each party must prepare for the mediation. Otherwise, the mediation will end in frustration and disappointment.

         I visit this topic again because it bears emphasis. If each party to the dispute is not apprised of at least the major strengths and weaknesses of her case prior to attending the mediation (i.e. communication and preparation), the mediation will, in all probability, be fruitless and a waste of time.

      Why is this topic so important? Because  it happened again last week. Once more, I was mediating a matter filed in court so that the plaintiff, defendant and their respective counsel were all present.

      Evidently, several weeks prior to the mediation, the defense attorney had a conversation with one of the plaintiff’s counsel in which she pointed out that the plaintiff did not have a case: the law plaintiff was suing under did not apply to plaintiff. The plaintiff attorney responded by stating she would look into it to determine if, indeed, whether the statute was applicable to her client.

          Well. . . it seems that the plaintiff’s attorney apparently did not apprise either her client or the other attorneys in her firm about this conversation (i.e. lack of communication). Another attorney appeared with plaintiff at the mediation and due to this lack of communication (and perhaps lack of preparatory research), was wholly unprepared for what happened at the mediation.

       I started the mediation with a joint session. After the plaintiff and her counsel made their introductory remarks, the defense attorney presented her view that plaintiff did not have a case at all because the statutes at issue were not applicable.

          I could tell from the look on the face of both the plaintiff attorney and her client that they were completely taken aback by defense counsel’s words: these words were all new to each of them. The attorney was completely unaware and unprepared for the notion that her client might not fit within the statutes and thus might not have a case. Judging by the look on the client’s face, this point had not been discussed with the client.

         Needless to say, the mediation went nowhere fast. The plaintiff’s attorney expressed a need to research the statutes and case law and confer with her colleagues about this new turn of events. No commitments could be made by plaintiff then and there. While the defendant was prepared to settle for a minimal sum, neither the plaintiff nor her client could so quickly and completely change their mindset to accept the fact that plaintiff had no case. They had walked into the mediation an hour earlier thinking they had a great case! How could they mentally and emotionally travel so quickly from having a “great case” to “no case!” They could not and to think otherwise, would have been unrealistic. Both plaintiff and counsel needed to think this through.

      So. . . a valuable opportunity to resolve a dispute was lost. The plaintiff walked out angry and frustrated, and her attorney probably walked out feeling the same way . . . but for other reasons.

          I do not know whether this matter will settle. There are various reasons why it should settle. But the end result is that a matter that could have been settled at mediation will proceed forward (at least for a little while) causing the parties to incur additional (and perhaps unnecessary) time and expense in litigation . . . simply because not everyone was prepared for the mediation.

            . . . Just something to think  about. . . once again!



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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