Periodically, I canvass mediators for a list of their mediation pet peeves. Over the years, the answers do not change much. So, I offer this list to make attorneys aware of these common pitfalls.
Failure to Manage Expectations – By far the number one complaint of mediators is attorneys who do not manage client expectations before the mediation. Mediations are far more likely to succeed if attorneys on all sides of a case talk to their clients about “the facts of life” prior to the mediation.
Dishonesty – This quote from a well-respected, oft-used, local mediator speaks for itself: “How about the attorneys who aren’t truthful with the mediator about their client’s authority. I hate to feel “used” where I have a sense the attorneys may be unethical or breaching their fiduciary duty and because it’s confidential and mediation, they know they’ve got safe harbor.”
Unwillingness to Provide Any Demand Prior to Mediation – This one usually generates as many comments taking the opposite view. Many mediators – I am one – would prefer that the parties exchange no settlement numbers prior to mediation. The point of this comment, however, is that large corporate defendants and insurance companies need sufficient time for the internal discussions necessary to obtain any settlement authority.
Sending Attorneys Who Do Not Know the Case – A mediator I know confronted a situation where the defense attorney was “a contract lawyer hired by an insurance defense firm at 6 p.m. the night before [the mediation] who does not have the file, has never seen the file, and has no clue what the case is about.” This is just plain disrespectful.
Coming Unprepared – This complaint refers to attorneys who submit a “boilerplate” brief, or fail to bring all pertinent documents or other evidence to the mediation. In order for a mediator to maximize her effectiveness, it is necessary that counsel provide as many arrows for the proverbial quiver as possible.
Not Bringing the Decision-maker Then Forbidding the Mediator from speaking to the Decision-maker – This is, perhaps, the most egregious permutation of not sending someone with enough authority to the mediation which makes every mediator’s list. From the mediator’s perspective, if the parties are serious about mediating, those who need to be involved in any the final decision should be at the mediation.
Providing the Mediator Inadequate Time to Review Submissions – Attorneys must provide the mediator with sufficient time to review the materials counsel has prepared to educate the mediator about the case. All too often, counsel will FedEx or e-mail a brief with, literally, hundreds of pages of exhibits to the mediator the night before the mediation. Then, counsel will inevitably complain that the mediator did not give any weight to document Bates No. 1038(A)(1)(b)(ix) or some such.
Poor Negotiation Skills – Many mediators mention some variant on this theme. One decried attorneys who “negotiate without a clear purpose or strategy.” Another bemoaned those times when one party or the other (or both) “wait until the last minute to raise key negotiating points.”
Check out my next post on what lawyers cite as reasons never to use a mediator again. Perhaps your pet peeve is mediators who write articles telling lawyers how they should approach mediation. Whatever the case may be, I welcome all comments.