Mike, I know this never happens with you…. Nonetheless, do mediator’s ever have a bad day? And if so, is there anything I, as an attorney for a party, can do to salvage things? After all, we spend a lot of time, not to mention money, preparing for mediations. I hate to see that all go to waste just because the mediator stayed up too late the night before.
— Hard Working Litigator —
Dear Hard Worker:
That is a fantastic question. To begin with, your premise is 100% accurate. That never happens to me. I get a good night’s sleep every night and come to my mediations with my “A” game every time…or a cup of coffee.
But in my old life as a litigator, I had experiences where I felt the mediator was just phoning it in. In fact, in one case (and this is a true story, not that my other stories aren’t true…) the retired-judge mediator carried messages back and forth for a few hours, and then just when a little momentum was starting to develop, the mediator excused himself for a doctor’s appointment. He returned three hours later, carried messages back and forth for another hour or two, and called an impasse. He billed us for the entire day.
And no, I didn’t use him again. But it did get me wondering whether there was something I, as a party’s representative, could have done to breathe some life back into the mediation process after it became clear that the mediator was not providing much of a value-add.
In the end, I concluded there was something I could have done! In fact, when the mediator is blowing it, I think it is the lawyer’s obligation to step up and do something to change the dynamics of the process and infuse the mediation with new energy, new thoughts, new momentum.
How? It’s actually not that difficult. It is also the subject of an article that was recently published in Alternatives, the publication of the International Institute For Conflict Prevention and Resolution (CPR). Click here for all the thrilling details. You’ll be glad you did.
Thanks for asking “HWL”.