Recently, I participated in a mediation with a highly-regarded and experienced mediator who was frustrated that the “claimant” remained “offended” from the opening gambit through the end of the wasted day.
Apparently, the claimant and its counsel thought it was OK for them to demand 100 cents on the dollar and hardly budge throughout the day, but that it was “offensive” that the opposing parties made low-ball offers and didn’t raise them much when the claimant didn’t reduce its demands very much.
First, this demonstrates a lack of client control by the lawyer for the claimant, expectation management and proper analysis of the claimant’s case.
Second, it also demonstrates that one has to have the proper client representative at a mediation. The claimant was represented by a low-level administrator who knew only one thing…that person lacked any kind of analytical ability and had no financial skin in the game. The person with authority was elsewhere doing other things.
Third, it also demonstrates bad faith…why agree to mediate if no give-and-take is acceptable because it’s more important to be “offended.”
Last, when did emotions become the over-riding consideration in business litigation?
The moral of the story is to “test” all parties’ willingness to mediate by asking one key question – what are the clients’ expectations? If any of them are unrealistic, it may be better to save the time, expense and aggravation of a wasted mediation.
(BTW, the claimant accepted a pittance from one of the opposing parties on the eve of trial…that could have been accomplished at the mediation.)
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