Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins. This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute.
Then when I arrived, the Plaintiff’s lawyer informed me that her client was short on time and requested I begin the process with them. I happily obliged and ultimately got the parties negotiating earlier than usual in the process. The trouble was that neither had revealed to me beforehand that they had previously discussed settlement and that there had been pre-litigation offers and demands (between the principals before they engaged lawyers) that were identical to those made at the hearing, but now after many months of litigating and incurring costs and fees on both sides.
When I returned the “final” demand, the Defendants, understandably, were incensed by the number, since this had been communicated to them many months before. They lost faith in the process and walked out without a settlement. The whole debacle could easily have been avoided had either side communicated to the mediator what the history of settlement negotiations had been.
Next time, I am going to ignore the signs and signals and ask the probing questions of both sides before I sit down with their clients to begin. Email communication only goes so far. Go ahead and call me old-fashioned.
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