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 3: Not Identifying Key Issues in Advance
A long day of mediation can be scuttled with last minute issues which should have been identified early in the day. If money will change hands, when and how? What about that non-disparagement or confidentiality clause? Many times, parties have agonized over the amounts to be paid, only to have the paying party say, “By the way, I don’t have that money now. I have to pay it over time.” The other side then explodes and cries “bad faith.” Emotions then get into the way of a deal that appeared to be done. To increase the likelihood of a successful mediation, payment timing issues, tax returns, financial statements, collateral, covenants not to execute, and the like, simply cannot magically appear at 7 pm after a long day of mediation. How important is a non-disparagement clause or a limitation on social media (or withdrawal of a social media post)? What about indemnification? Exactly what claims are going to be released? Who will be released (which can be a real issue especially in commercial disputes like construction cases)? Allowing such seminal issues to fester until late in the mediation can be a real deal breaker, and it also really upsets the mediator who has worked hard to get the parties to agree to the basic deal terms. A good mediator and counsel will have thought through these issues well before the day of mediation or brought those issues to the forefront early in the day.