Friday 5: Signs that It’s NOT Time to Mediate

I recently offered five signs that it’s time to put a case into mediation. As a lawyer and mediator, I’m a long-time advocate of settling cases through mediation. Statistically, mediation is around 90% effective. Nevertheless, I’ve been involved in mediations that didn’t work out. Based on those experiences, here are five signs that it’s NOT time to mediate.

1. Your client is wearing rose-colored glasses.

A good mediator is an expert at diplomatically educating the clients on both sides as to the weaknesses of their cases and the associated risks if the case goes to trial. But the tough-love truth about a case is best received by clients if they’ve already heard it from their own attorneys. It’s like how your spouse’s suggesting you skip the cheeseburger goes down better if your doctor has already advised you to lose a few pounds.

2. You’d have to squeeze blood out of a turnip.

Let’s face it, despite whatever lofty principles might be involved, most civil cases boil down to agreeing on how much money needs to change hands. If the party who’s going to pay simply doesn’t have the amount of money the other party insists on receiving, there’s nothing that even the greatest mediator on earth can do to settle the case. Also, see No. 4 below.

3. It’s still too personal.

Although the resolution is often payment of money, the parties involved in litigation usually have strong emotional connections to the dispute as well. A good mediator can at least defuse, and perhaps help heal, emotional conflict at mediation. But if one or both parties believe they can use mediation to “win” or prove a point, it will undercut the opportunity to settle, a process that always requires compromise.

4. It would be too much like a blind date.

I’m all for mediating early in a dispute if the conditions are right. But generally the chances of settling at mediation are better if each side has a good idea of where the other is coming from. In particular, if the main issue is money, it’s best if each side has put at least one sincere dollar figure on the table before mediation. If one side genuinely believes a case is worth $25,000 and the other is equally convinced it’s worth $1 million, there’s more work to be done than a mediator can do.

5. You don’t have enough specifics for the mediator.

Unlike going to trial, you don’t need to have all your ducks in a row to mediate. But you need to have at least some of your ducks in a row, so the mediator can persuasively present your position to the other side. Arguments are far more effective when supported by potential evidence such as photos, video, expert reports, and witness statements, as well as specific, realistic calculations regarding damages.