This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.
Number 2: Don’t Make a Failed Mediation a Failure
As much as the mediator, counsel, and the parties might like, the fact is that not all disputes submitted to mediation get to a complete “global” settlement. However, if your mediation “fails,” don’t throw your documents into your briefcase and complain that the other side wasted your time and did not come in “good faith.” Stop. Think. Evaluate carefully what you learned and may have agreed upon.
You and your client have just spent an entire day reviewing and discussing the pros and cons of your case and the positions of the other side, and all the while – hopefully (see post No. 4) – listening to what the mediator has to say. Even in a “failed” mediation, you leave with additional knowledge about your case and the other side’s case as well, Now, consider what else may have been accomplished. Are there are any non-global agreements that can be reached that will possibly lead to a better chance at a later settlement and/or save legal fees? Use the mediator to raise these issues. Can there be discovery (formal or informal) on the key issues that led to a non-global deal? Can there be a partial settlement of some of the disputed issues? How many depositions are really needed? What about shifting the case from litigation to binding arbitration? If a major factor is a pending summary judgment motion, perhaps schedule another mediation.
The point is: set aside any disappointment about not getting a global deal done and put on your litigator thinking hat before you walk out the mediation door. You may very well have accomplished much more than you realize.