Most people attend mediation, fully engaged and committed to the process, hoping to resolve a matter. However, there are some who attend mediation with no real desire to settle, despite their outward claims.

I had such a mediation the other day. It was court-ordered on the eve of trial. The matter had been pending for nearly five years, meaning the litigation had taken on a life of its own, and the parties were deeply entrenched in proving their respective positions were correct.

The fact that the mediation was court-ordered on the eve of the trial is a significant detail. It suggests that the parties may not have been truly committed to finding a resolution, as they could have agreed to mediate at any point during the five-year period of the case.

Despite my request for briefs, only one party provided it, and they sent it to my assistant instead of directly to me. This lack of direct communication left me entering the mediation with almost no understanding of the matter.

So, I asked the plaintiff what the matter was about and got a long-winded convoluted story from counsel with many tangents. The story did not make much sense. When I asked clarifying questions, I got non-answers that were circular in nature. As the actual client was not present at the mediation (another bad sign!), I was unable to make additional inquiries.

Then, I spoke to the defendant, who, naturally, told a story in stark contradiction to what the plaintiff’s counsel had told me. That story was at least understandable.

When I returned to the plaintiff’s counsel to discuss the defendant’s version of what happened, I was met with a diatribe and foul language. I tried to explain that I was not taking sides but only presenting different perspectives. The response was more accusations and foul language.

Deciding to skip delving into the facts anymore, I asked the plaintiff’s counsel for a demand. The response was that I should see what the defendant was willing to offer. The plaintiff refused to make a demand and insisted that the defendant bid against himself.

While in previous blogs, I have discussed that it may be wise to make the first offer as it acts as an “anchor” for the negotiation, I could sense that this was not a good strategy. The defendant told me that despite his efforts to determine the plaintiff’s alleged damages, the plaintiff refused to respond conceptually or with complex numbers. Thus, the defendant was put in the position of trying to pin the tail on the donkey blindfolded.

The defendant did give me a number, which the plaintiff’s counsel naturally rejected. Again, counsel refused to provide a counter-proposal but simply provided another diatribe about the defendant.

It did not settle.

Why? The plaintiff’s counsel could not articulate a cogent, simple story of what happened. The Plaintiff’s counsel failed to listen or accept that there may be other perspectives or ways of interpreting the facts; the plaintiff’s counsel refused to make a demand or to provide a counter to what the other side offered. Rather the plaintiff’s counsel was focused on personally attacking the defendant.

In short, the plaintiff’s counsel did not attend mediation in good faith. While I am all for mediation, in some situations, it just is not appropriate.

… Just something to think about.

 

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