In my last post, I offered a list of mediators’ common pet peeves with attorneys. So, I think it’s only fair that I post a similar list of reasons lawyers give for not using a mediator again.
Prejudging or Evaluating too Early– Especially in an area where a mediator is a bona fide expert in the issues involved in the case, it is easy and tempting for the mediator to reach a conclusion and attempt to drive the parties to that pre-determined conclusion. Even if the case ends up there, the worst mistake is for the mediator to drive the train rather than act as the conductor.
Personalizing – The mediator’s job is to assist the parties in reaching a settlement. It’s not to be well-liked. Nor is it to demonstrate that the mediator is the smartest person in the room. Avoid petty personal conflicts with counsel.
Coming Unprepared to the Mediation – Mediators complain about lawyers who are unprepared. One of the biggest sins a mediator can make is not preparing for the mediation. I conduct pre-mediation calls with each side separately so I can prepare for both legal issues and personal issues that are likely to arise.
Giving up too Early – Achieving a negotiated resolution in a litigated case is hard work. Persistence is required. A mediator who is perceived as punching a time clock or watching the clock to bill for every second of time is unlikely to be rehired. Often, after a lengthy session, the parties are primed to settle. They just need a cooling off period. Perhaps they cannot concede in person after heated, protracted negotiations. The mediator who does not make the timely follow up phone call is unlikely to get repeat business.
Embarrassing the Lawyer in front of the Client – Oops. I did this once by mistake. Counsel had been sanctioned by the court in a discovery dispute. During the mediation, she repeatedly cast aspersions on opposing counsel. I eventually reminded her that opposing counsel was not the one sanctioned by the court. Apparently, counsel had not told her client about the sanctions. Didn’t settle that case. Didn’t get hired again. Mediators need to be aware of when to discuss issues with attorneys outside the presence of the client. I am now keenly aware of what I should and should not say to attorneys in the presence of a client.
Appearing to be anything other than Neutral –A settlement does not necessarily equal a successful mediation. I am aware of cases which have settled when the parties kicked the mediator out of the room. Most parties and counsel care about the process. Were they treated with respect? Did the mediator empathize with their position? Did the mediator allow each party to say everything the party wanted to say? Did the mediator understand the legal issues? Did the mediator give best efforts in trying to persuade the other party? Mediators who provide a good process will be hired again. Those who do not won’t.
What would you add to the list?