From the Blog of Phyllis G. Pollack.
On at least three other occasions, I have discussed how important it is to prepare for a mediation. I first wrote about it in November 2006 (“Preparing For Mediation”) and again wrote about it on April 30, 2007 (“Preparation: A Necessary Must”) and once more on February 15, 2008 (“Preparation And Communication”). The theme of each of these blogs is the same: in order for a mediation to be successful, each party must come prepared.
I also posted a blog on the notion that a bad mediation is worse than having no mediation at all. (“A Conversation” – January 29, 2008).
Well. . . this past week, these two themes finally coalesced resulting in a very bad experience for the parties.
The case is a simple one: a collections case. Plaintiff supplied goods to defendant for which she was not paid. Defendant contended some or all of the goods were defective and so refused to pay. Plaintiff sued. Defendant counter-sued claiming that as a result of the defective goods, she lost money in the form of profits and other consequential damages.
The problem was that prior to the mediation, defendant never provided any documentation or proof to plaintiff that some of the goods were defective and/or that she lost money from her own customers as a result and/or suffered other consequential damages. Perhaps, the defendant was not taking the matter seriously – who knows?
So the parties with their counsel came to mediation. In a separate session, plaintiff demanded the full amount due to her, claiming that defendant never complained about the goods being defective until after the lawsuit was filed. (That is, the “complaints” were merely defensive only.) Thus, she insisted on being paid the full amount due and not a penny less.
In turn, in my separate session with defendant, defendant claimed she told plaintiff the goods were defective. I asked her if she had written proof of such complaints: she was not sure. I suggested to her that without such proof, plaintiff would be unwilling to lower her demand.
Defendant then called her office and had e-mailed to her some of the e-mails complaints sent to plaintiff. The mediation thus turned into a document production. We spent the next hour or so producing evidence of complaints to plaintiff.
While plaintiff was appreciative of finally getting some proof (after all these months of asking for it), she was not about to negotiate a settlement without further investigation. Frustrated and angered at how her time had been wasted at mediation, she left. Plaintiff has been trying to resolve this simple collection matter for months and believes that she has been met with nothing short of stall, delay and lack of good faith by defendant. To her, the events at the mediation were just another example of a lack of good faith.
. . . So plaintiff walked out, unwilling to “waste” more time. She is now more angry than when she walked in and more entrenched in the amount she will accept to settle this dispute. It will now take more money to settle this dispute because of defendant’s lack of preparation for the mediation and perhaps because of her unwillingness to take the matter and the mediation seriously.
While mediation provides a very valuable opportunity, it cannot be viewed whimsically or just as another requirement to be completed and checked off on the litigation checklist. It must be taken seriously and viewed as very fragile. Mistreat it and it will surely blow up in your face.
I suspect that the matter at hand will eventually settle but to do so. . . will cost a lot more in time, money, egos, temperaments and emotions than it otherwise should or would have if the mediation had not been treated as just another stop on the way to trial.
. . . Just something to think about.
From John Folk-Williams's blog Cross Collaborate Facilitation is too often an underrated art. Both the practice and its practitioners are often characterized with some disdain as all process, no substance....By John Folk-Williams