How to Tank a Mediation Without Even Trying

May 4, 2018

Every so often, you may want to tank a mediation. Maybe you know in advance it can’t settle. Maybe the blood is so bad between lawyers or clients that you just want to teach a lesson to the other side. It could be that you think the judge or arbitrator is really enjoying all of the discovery disputes or doesn’t have enough to do. Whatever the reason, based on my experience as a mediator, here are the top ten ways to blow a mediation (as well as some light reading).

Promise your client (preferably in writing) that there is no way he can lose at trial. Also, be sure to under-estimate the cost of the litigation both in terms of the cost of fees and expenses as well as the client’s expected time-commitment and anticipated loss of sleep. This should sufficiently reduce the client’s incentive to settle at mediation.
Do not submit a mediation statement to either the mediator or the other side. The reality is that the mediation statement serves very little purpose other than to educate the mediator and the other side to the strengths of your case. If you do decide to deliver a mediation statement anyway, consider using it as an opportunity to educate the mediator on how unreasonable the other side is (though this should be obvious to any experienced mediator as the other side has not yet caved to your demands). You may also choose to inundate the mediator and other side with copies of pleadings you have already filed in the case, with no explanation as to their relevance.
Do not personally attend the mediation – your attendance might send the message that you are serious about settling. Instead, send a junior associate who has had little or no involvement with the litigation, who does not know the factual or legal issues and who does not have the confidence or trust of the client. This will help to ensure that the mediation is not successful.
Be efficient when preparing for the mediation (assuming you decide to attend). Do not focus on the law or the facts – the other side must already be familiar with these or be too dense to understand your version of the law or the facts. Focus on the important stuff like making the mediation personal. Be prepared to embarrass opposing counsel by talking about their procedural gaffes in this case or their losses in other cases. This is really just constructive criticism.
Do not make an opening statement at the mediation – simply state that your position is already clear. Should you decide to make an opening statement, be sure to point out how unreasonable the other side has been for not simply giving in, explain you are not prepared to compromise in any way, but have a “take it or leave it” offer. Also, don’t forget to remind the other side and the mediator that you have scheduled only one hour for the mediation because you need to be back at your office to take a phone call.
Do not bring your client to the mediation. Instead tell the other side that the client is available by telephone or that you already have settlement authority. Should your client inconveniently decide to show up at the mediation, make sure he does not participate in the mediation. You’re being paid to attend the mediation so you should respond to any questions or comments made to your client by the mediator or the other side. This is your case after all.
If your client is the defendant, cry poverty but do not provide any financial information to support the claim.
Do not admit that your case has any weaknesses at all, including in a private session with the mediator. So long as you bury your head in the sand, neither the mediator nor the other side will realize there is a potential chink in your client’s armor.
Yell, scream and pound on the table so everyone in the room knows you really mean what you are saying.
If it looks like the case may settle despite your best efforts, be prepared to pack your bag and leave. The best exit is a dramatic exit.

James Leshaw

Jim Leshaw is a mediator and arbitrator based in Miami and Key Biscayne, Florida. He handles a wide variety of commercial disputes throughout the United States, Latin America and Europe. He also sits on the board of directors of Avianca Holdings, S.A. (NYSE: AVH), the Latin American based airline. MORE >