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<xTITLE>How To Have an Unsuccessful Mediation</xTITLE>

How To Have an Unsuccessful Mediation

by Phyllis Pollack
December 2021

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Recently, I conducted a mediation which from the moment I introduced myself, I knew it would not settle. Certain signs gave it away.

The first sign was that the plaintiff was “too busy” to attend. And mind you- this is a mediation via zoom (or even by telephone!) According to defense counsel, plaintiff was unemployed; yet she was “too busy” to even attend by zoom or telephone. Rather, plaintiff’s counsel told me that I would simply speak with her, and she would relay my comments to the client and then provide me the response.

The second sign was when the plaintiff’s counsel advised that she “knew” exactly what the client wanted by way of settlement and so had the “authority” to settle. Obviously, what this ignores is the give and take and change of perspective that occurs during a mediation. Rather, here the attorney walked in with a set script and nothing, but nothing would change it. So… why mediate?

At one point, I did ask to speak with the client directly. Plaintiff’s counsel refused. Not a good sign for a successful mediation.

As most folks know, part of the job description of a mediator is to be the bearer of contrary allegations or of an alternative point of view. When I suggested to plaintiff’s counsel that perhaps there was another way of looking at the case, counsel became defensive and started playing verbal judo with me. Rather than listening and acknowledging (as opposed to even agreeing to) what I was saying (and perhaps what a jury might believe), counsel was quick to refute my comments. Another sign that the mediation was going nowhere fast.

My intuition also told me that while plaintiff’s counsel was having telephone conversations with her client, she had very little sway over her client. I say this because despite the contrary points I was raising with counsel (at the request of defense counsel), plaintiff never really waivered from her initial demand. If counsel was providing any counsel or advice, plaintiff  ignored it.

But perhaps the ultimate was when the defendant suggested a settlement that ultimately would have netted plaintiff an extra $10,000- $15,000 if she were willing to put a little bit of effort in effectuating the settlement. Plaintiff was unwilling to put in that little bit of effort or even to suggest that defendant keep the offer open for a bit of time while plaintiff investigated to see if defendant’s proposal was even workable. No- it was easier to shoot down the creative and lucrative proposal and keep to the original demand even though it meant giving up a windfall of $10,000- $15,000. Plaintiff was “too busy” and the proposal “too speculative.”

So- the points are simple: show up for mediation, be receptive to what others have to say, (As I say- there are three sides to every story- plaintiff’s, defendant’s and what the jury/judge says it is) and be willing to be creative and think outside of the box; do not come in with an immutable demand. If you do, you will be like the parties in this mediation- walking out without a deal.

… Just something to think about.

Biography


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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