The unprepared party

If there is one thing that can doom a mediation to failure, it is conducting the mediation too soon. If the information available to the attorneys for the parties is limited to the claims that have been asserted by each side, it will be difficult for the mediator to identify and utilize weaknesses in those claims to bring the parties closer together.          

While a lack of information should make an experienced litigator more uncomfortable with the strength of a client’s claims, the reverse tends to be true. More importantly, uninformed clients tend to be convinced of their own positions unless and until someone they trust and respect has information that can be used to help them understand the risk associated with the litigation. Look around you.  It is human nature that the supremely confident and inflexible person tends to be the most uninformed person.  If you don’t know who that person is, it is probably you. 

I have a distinct memory of the most unproductive mediation in which I ever participated (as a young advocate and not as the mediator). The complaint and answer had been filed but no documents had been exchanged, no expert analysis had been performed, and no depositions had been taken. The strategy of opposing counsel and his client was to enter the room with a confident swagger and a condescending sneer. The mediator had not requested mediation statements or inquired as to the level of preparation. Opposing counsel had nothing more with him than a blank legal pad, a pen and an ample supply of arrogance. His entire presentation was one sentence long and was something like this: “We want our two million dollars.” I asked him to explain his support for the number and he refused, simply stating that we could either pay it or not and he would continue with the litigation. His client loved it (at least that day, maybe not later). At that point in my career, I was a bit of a smart aleck and my response was to write “$50,000,000” on an otherwise blank sheet of paper and slide it across the table to him stating that it was our demand on our counterclaim. When he asked in a belligerent tone what support I had for the number, my response was that the support for my demand was the same as his support for his demand—nothing. The mediation ended soon thereafter. 

The 25 years or so that have passed since that experience have taught me that the parties must exchange at least the key documents and be put in a position of having to submit a mediation statement regarding the claims or, like the mediation described above, the parties will abandon the mediation process quickly and may be unlikely to revisit the process later. What clients, who have had such an experience, may not understand is that the process is a good one, but ONLY if everyone is prepared.