Recently in Mediation Category

Blog #23 (Mediation Without the Presence of Clients with Settlement Authority; Marty Perez)

April 4, 2012

Twice recently, I attended mediations where I ultimately learned that the opposing lawyer failed to bring a client with him who had authority to settle the case. On one, my client was fortunate to learn that disturbing fact fairly quickly; we walked out of the mediation after only wasting about two hours (not including travel time). On the second, we were not so fortunate. We did not learn that our adversary failed to have someone present with settlement authority until approximately 5:30 p.m. - eight hours after we began the mediation. The client, in essence, paid three lawyers for accomplishing nothing. Additionally, two of their representatives did nothing at work that day. In hindsight, there really isn't much we could have done to avoid this.

Relying on your adversary being truthful, which we did in both of these cases, unfortunately, sometimes is not enough. What I will do with these parties in the future is refuse to mediate with them, unless they represent to the mediator in writing that their client representative will be physically present and will have actual settlement authority. Requiring them to pay exclusively for the second round, if such occurs, is something to be considered, but probably would not be well received.

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Blog #21 (What To Look For In A Mediator; Jim Wynn)

March 7, 2012

A close friend of mine, who happens to be a mediator, asked me what are the key things I look for in a mediator when recommending one to my clients and, what in my opinion, makes a good mediator who I will use again. Although I keep a list of mediators I like, I never actually itemized the characteristics in my mind, which I consider in concluding why I prefer certain mediators and outright object to others.

When he persisted in making me think about and reveal to him the characteristics that caused me to either recommend or reject particular mediators, I told him I would make that a blog topic, so here it is and thanks. He knows who he is. (For those of you readers who have never been involved or have little or no familiarity with mediation, a mediator's sole task is to try and bring parties in a dispute toward resolution voluntarily. It is a very difficult job which requires great skill. What makes it more difficult is that the mediator cannot make either side do anything that party is not agreeable to doing).

Here is what I look for in mediator recommendation/selection, as well as two of my pet peeves.

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Blog #15 (One Litigator's Perspective on the Mediator's Compromise; Bud Selig)

December 14, 2011

The mediator's compromise is generally a final attempt by the mediator to try and settle the case when an impasse still remains and the mediator has nothing left in his or her arsenal of tricks. What happens is that the mediator picks his or her optimal settlement number and communicates it to both sides privately. If one side accepts, they learn if the other side accepted or rejected. However, if a party rejects, they never learn whether the other side accepted or rejected. A good mediator will use the mediator's compromise as a final tool only when he or she genuinely believes it may be an effective tool to settle the case. Others, however, use it in desperation when they see the settlement prospects going south as a last ditch effort to try to make something happen that simply is not meant to happen at that time just to be able to say "I settled another case." What mediators need to know, however, is that good lawyers can always tell the difference. Even when employed by the good mediator, however, it has been my experience that the mediator's compromise generally does not effectuate a settlement. In fact, in all of the mediations in which I have been involved, and I am thinking hard, I cannot recall one where a settlement resulted from a mediator's compromise. So,to put it in baseball terminology, I am not a fan of the mediator's compromise.

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