Top 10 blunders to avoid in mediation

Before David Letterman retires, it feels like the right time for a Mediation Top Ten List. We've all seen those "Top Ten Ways to Succeed" lists; the flip side - "Top Ten Ways to Fail" - seems like a more interesting approach. So, here's a semi-satirical Top Ten List of the absolute best ways to destroy any chance of settling a case at mediation.

1. Pick the wrong mediator. Not all mediators have equal subject matter expertise and every mediator approaches a case differently. Some are evaluative, some facilitative, some empathic and caring and some brusque and "bottom line." If your case needs an evaluative mediator, you must have someone with subject matter expertise - without it, neither your client nor the opposing parties are likely to be persuaded by what the mediator says. Likewise, if your client needs "hand-holding," and the mediator has a different approach, your client may be offended and will want to walk out. Either way, you will have wasted your time and the opportunity to resolve the dispute.

2. Don't "time" the mediation correctly. Here are two excellent ways to ruin the chance of settlement: have the mediation too early or have the mediation too late. A "too early" mediation will just result in frustration because there are too many unresolved factual or legal issues, or the damages are uncertain, or the parties haven't experienced sufficient "pain" in the litigation process. A "too late" mediation typically fails because: (a) The parties have spent too much in fees and costs; (b) insurance proceeds that might have been available at an earlier date before they were consumed in defense fees and costs are no longer available; (c) the parties are so anchored to their "sunk costs" that they cannot look forward to a resolution, they can only look backward to what they have spent.

3. Don't prepare your client to settle. A reliable way to fail at mediation is to show up with a client who is ignorant of the process of mediation, has no idea of the role of the mediator, has not been told that the mediator will likely point out "problem areas" with the case (and will therefore feel that the mediator is taking sides against the client), has not been told that some compromise will be necessary, is unaware that the mediation process can be time-consuming, anxiety provoking and difficult.

4. Overpromise. Here is a phrase from a client that is sure to drive a wooden stake into the heart of a settlement: "But you told me that my case was worth a million dollars!" A variety of factors, substantial among them confirmation bias (the tendency to gravitate toward facts and arguments that support your position and resist contrary facts and arguments regardless of how persuasive they may be), push clients toward a belief that their case may be worth substantially more than what others would see as the realistic settlement value. In the client's mind, the case is bonfire burning with a fierce heat, fueled by great facts, solid legal arguments and overall a just cause. When you overpromise, you are throwing gasoline on the fire, creating a conflagration that in the client's mind will burn through any possible defenses. When the mediator suggests that the case is more like a few wisps of smoke from a smoldering wastebasket, your client will likely perceive that you have underperformed. You will get blamed, the mediator will lose credibility and the unmet expectations of your client will destroy the possibility of a resolution.

5. Don't bring a decision-maker. Don't roll your eyes when you read this and say to yourself "Nobody would ever bring someone to a mediation without authority to settle the case." Yes, people do, and nothing will kill a settlement faster than the words "I need to get authority."

6. Write a useless mediation brief - better still, don't write a brief. Useless briefs come in a variety of flavors: There are briefs that contain pages of procedural detail but omit any mention of the essential factual dispute in the case; there are briefs that don't address the important legal issues; there are briefs that are factually and legally wrong (these are usually full of typos and other errors that leave the mediator feeling queasy about the professionalism of the lawyer involved). And there are briefs that "miss the point," usually by failing to focus on the "back-story" or "sub-text" of what is really driving the case. These briefs fail to point the mediator toward the key to settling the case, which results in the parties spending too much time in the mediation on the process of educating the mediator instead of resolving the dispute. Or, don't submit a brief and leave the mediator totally in the dark.

7. Don't allow enough time for the mediation. A terrific way to blow up a settlement is to announce, two hours into a four-hour mediation, that your client is leaving because he or she has another commitment (this is usually accompanied by the helpful comment that the client will be "available by cellphone"). This is a superb way to not only remove your client from the process but also aggravate the other parties to the point where they also walk out of the mediation. A corollary of the "we don't have any more time for this" approach to failure is to tell your client that every half-day mediation ends precisely at the half-day mark (likewise with full day mediation) which, of course, totally ignores the fact that many times it takes extra time to reach a settlement. Not advising your client of this in advance is an excellent way of frustrating the settlement process just at the critical juncture where the case could be resolved with another hour's worth of everyone's time.

8. Give no consideration to your "BATNA" before the mediation. A BATNA is your "best alternative to a negotiated agreement." It's not your bottom line - it's what would or could happen if you can't reach a settlement at your bottom line. It informs your bottom line because it helps you analyze the risks and rewards of not resolving the case at your desired amount. When you don't think about your BATNA it makes it more difficult to get to your bottom line and to feel comfortable with accepting or rejecting a number at your bottom line. In essence, it's the best preparation for reaching a settlement because it allows you to consider whether what you are being offered or asked to pay is, truly, a better alternative to not settling the case.

9. Show up without knowing the important facts, having the important documents or understanding the legal principles - and be prepared to ignore contrary facts and arguments. A good approach to failure at mediation is to be unaware of important issues such as whether you could recover attorney fees, or whether you have a statute of limitations problem, or whether the measure of damages means that you might have a good liability case but a lousy damages case. You can further assure that you won't reach a settlement by blithely ignoring all the facts, law and arguments that contradict your position or dismissing any possibility that a judge or jury could see things in a way that's different from your view of the case.

10. Finally, everybody's favorite: wait until the very last minute to bring up important additional deal points. Bringing up critical deal points right at the end will not only assure the complete breakdown of the discussions but will also endear you to everyone because by that point they are feeling exhausted and you will have destroyed all the remaining goodwill in the room. Thus, if you want to fail, be sure to wait until someone has started drafting the memorandum of settlement before you raise the idea of confidentiality, or a pay-out, or the satisfaction of some condition not previously discussed, such as the approval of a third party or the resolution of a separate lawsuit that's not part of the mediation.

Give these a try at your next mediation and you might be surprised at just how effective they can be in ensuring that your case won't settle.