The Top Ten Most Common Frustrations of Mediation

For most litigants, mediation has become their day in court. It’s a big deal! This article explores the top ten most common frustrations associated with mediation and tips on how to avoid them.

1. “We are not scheduling mediation until x happens!”

At times, a plaintiff may be hesitant to schedule mediation in a personal injury action until treatment is completed, or in a commercial case until the damages are fully ascertained. The defendant may not want to schedule mediation until a plaintiff produces particular documents or responds to certain discovery requests. Communication is key. Sometimes things get lost in translation with e-mails flying back and forth. Last I checked, phones still work. Picking up the phone and talking with the other side will help both sides communicate clearly regarding what is needed to properly prepare for mediation and when would be the best time for mediation to be set.

2. “We need to reschedule and they won’t agree!”

At times, after mediation has been set, it needs to be rescheduled because one party is still waiting on some important information in preparation for mediation or, conversely, the other side has just received important information and needs time to review it. The rule of thumb for most mediators is once a mediation date is set, the mediation will not be rescheduled unless both parties agree. When one party wants to reschedule mediation but the other side objects, sometimes a ruling from the Court is necessary to determine whether the mediation will proceed forward or not.

3. “They need to be there in person!”

Pre-pandemic, the rebuttable presumption was all parties must attend mediation in person. Post-pandemic, the rebuttable presumption has changed with parties now being allowed to participate remotely. Moving forward, if you want to have a party there in person, a ruling from the Court ordering the same will likely be necessary.

4. “We demand an opening session!”

Opening sessions during a mediation have fallen by the wayside. All too often, something said during an opening session offends one of the parties and the mediator ends up spending a lot of time trying to put toothpaste back in the tube. However, there are still occasions where opening sessions can be very effective. If you would like to have an opening session during mediation, please let the opposing party and the mediator know. Nobody likes to be picked off first base.

5. “That’s an outrageous demand/offer - we can play that game too!”

Sometimes a party will start with an offer so high or a demand so low that it offends the other side leading to a natural “what’s good for the goose is good for the gander” mentality. Resist the temptation! Take the high road. Don’t stoop to their level. You likely have evaluated the case fairly and you and your client have a game plan coming into mediation about the moves you will make. Stick to the plan. It will become obvious during the mediation session who is being more reasonable, which will serve you well in getting the case resolved within the range in which your client would like to settle the case.

6. “Tell them to stick it where the sun don’t shine - we’re leaving!”

If emotional decisions are made during a mediation session, the case does not have a very good chance of settling. On the other hand, as long as the parties focus on making a good, sound business decision during the course of a mediation, the case has a very good chance of being settled. Preparing your client with a reasonable settlement range going into mediation will help you and your client avoid making an emotional decision during the mediation process. This range is what most mediators call the “box of reason.” Preparing yourself and your client to seriously consider a number that falls within the box of reason will help you and your client keep level-headed and avoid emotional responses during a mediation session.

7. “We will sign, but only under these conditions!”

Often when a mediation is coming down the home stretch, one of the parties will interject certain conditions that must be incorporated into a mediation settlement agreement. Some of these conditions include but are not limited to, indemnification/hold harmless provisions, final demand letters from Medicare, multi-party checks, confidentiality, non-disparagement, etc. Sometimes waiting to interject these special conditions has the potential to derail a mediation. As you prepare for a mediation, please mention any such special conditions in your pre-mediation confidential submission to the mediator. Then at the mediation itself, please remind the mediator of these special conditions at the outset so there are no surprises at the end that could derail the mediation. As the old Holiday Inn commercial goes, “Sometimes the best surprise is no surprise.”

8. “We’re backing out of the signed deal!”

No, you are not! Unless your client (or you) want to pay the other side’s attorney fees and court costs, a deal is a deal. Once the mediation settlement agreement has been signed, sealed, and delivered, it is very difficult to back out of it. You typically have to prove fraud, which is very difficult to do. If for some reason your client decides to try to back out of a mediation settlement agreement and cannot be persuaded otherwise, you should make it clear to your client that there is a very good chance the Court will order your client to pay for the other participants’ attorney fees and costs.

9. “But I am trying to get my client to pay your bill!”

In the eyes of most mediators, the attorney is seen as the mediator’s client, not the actual plaintiff or defendant. If you have concerns about your client paying the client’s fair share of the mediation bill (the costs of mediation are typically divided equally between the parties), then make sure you get the money from your client upfront and send it to the mediator’s office or hold it in your trust account as a retainer. Mediators work very hard at settling cases and they deserve to be compensated for their time. Don’t allow the mediator to get stiffed by your client. You want to keep the mediator on your good side and avoid becoming “one of those lawyers.” Once the mediation bill is sent, pay it, and if you need to chase your client later for the money or write the expense off, this “cost of doing business” should be borne by you and not the mediator. Keeping the mediators in your life happy will serve you well.

10. “I am never using that mediator again!”

And perhaps you shouldn’t. If you have had several bad experiences with a particular mediator, perhaps it is time for you to move on and try a different mediator. But don’t allow one bad mediation to sour you on a particular mediator. Everybody has a bad. Talk to the mediator and please let him or her know what could be done differently next time. If a case doesn’t settle, mediators often go to bed that night thinking about what could have been done differently to settle the case. Your insight is welcomed. And remember, it is a lot easier to carry around grace than it is to carry around a grudge.

About the Author:

Kevin Fitzharris is a registered civil mediator who has mediated thousands of cases. He is a member of The National Academy of Distinguished Neutrals, and has spoken at local, state and national conferences on the topic of mediation and other alternative dispute resolution methods. He can be reached at kkf@barrettlaw.com or 260.423.8874.