Have you ever been involved in a mediation that ended before it started? I have. I don’t mean literally, but I do mean one that never gets past the first round of demand and offer.
In one sense, conducting a mediation is like flying a plane: It’s not going anywhere if you can’t get it off the ground; and that means getting the case into the rhythm of exchanging offers.
As simple as that may sound, lawyers often make it difficult — and never find the rhythm.
I routinely conduct mediations in which the initial offer or demand is made is at the mediation. This is not uncommon in straightforward (IE: car accident) cases, and it rarely presents a problem. However, in larger and more serious cases, I’ve seen competing attorneys expend a lot time, energy and negative emotion trying to get into a rhythm where the parties can have a meaningful negotiation session.
I’ve found this kind of negativity often occurs when the defendant or plaintiff only hears a demand, or offer, for the first time, at the mediation. When that happens, a mediation may never get off the ground.
A well-respected lawyer once told me that his office will not agree to mediate a case without first making a demand and receiving an offer — which, in his experience, typically sets the stage for a productive session. Though this doesn’t ensure success, it does ensure awareness going into the process.
I’m guessing every experienced litigator has participated in one or more mediations that failed because of high demands (or low offers) being withheld until the first day of mediation.
I will concede that, by making an advance demand or offer, you run a risk of discouraging the other party from participating in mediation. At the same time, I would contend that, if this occurs, maybe your case isn’t ready for mediation in the first place. And wouldn’t you rather know that before you waste a day finding out?
Another decision that often impacts a negotiation process finding its rhythm is when lawyers back up from, or renege on, offers or demands made prior to mediation. I’m not necessarily suggesting that this tactic is improper, but I will say it’s one that never sits well with the opposition.
And yes, I understand that offers and demands change based on the posture of a case, and that no one has a right to assume an offer or demand will remain open indefinitely. However, I have found that, when one intends to withdraw a prior offer or demand, an explanation ahead of time is helpful — and often necessary. Otherwise, it will not be received well.
Before your next mediation, ask yourself “Is this case ready to mediate? Have I done everything needed to give the other side an opportunity to adequately assess the risk?” If the answer is no, you may want to save yourself (and your client) the money, time and energy — and explore the option of mediation at a later date.
Enjoy the journey.