By: Debra Scudiere, Kay Casto & Chaney PLLC
To those of you who read my first blog about those mindless, annoying things that advocates sometimes do in mediations, here is the rest of my Top Ten List:
- Anyone participating by phone who:
- Goes to lunch or to another meeting or to the bathroom and can’t be reached at
a critical point of the mediation.
- Puts his telephone on hold so that everyone hears his Muzak in the background.
I actually have very mixed feelings about a person who says he wants to appear by phone. I understand that, if an adjuster is in Arizona and our mediation is in West Virginia, it is very hard for him to justify flying all the way to West Virginia for a $5000 case. That does not, however, make it any easier on the people who show up in person for a full day of very intense negotiations and have trouble communicating effectively with the one person who chose to stay in his office for the day.
- An attorney who comes to the mediation with a big stack of bills that the other side is seeing for the first time that day.
This laziness really puts everyone at a disadvantage. Plaintiff’s counsel may not have had a chance to talk to his client about how this affects their demand. And Defense counsel, who, we assume, has already been given authority for a settlement range, may not be able to get more authority that day.
- A Plaintiff who refuses to make a demand.
In the immortal words of the Spice Girls, “Tell me what you want, what you really, really want.”
- A Defendant who refuses to make an offer.
If you are not here to talk money, why are you here?
- An attorney who uses any of these phrases:
- “I forgot to tell you; I have a 2:00 tee time.”
You have to be able to devote the proper amount of time to the mediation that day. Allowing an hour won’t work. All parties to the mediation must feel like they have time to flesh out the real issues of the case.
- “My client just wants his life back.”
Educate your client that there are some things that the mediation process (or a lawsuit for that matter) cannot do. It cannot:
– relieve physical pain.
– or bring back someone from the dead.
– or erase hard feelings.
- “They came down $100.00 so we’ll go up $100.00.”
This just serves to irritate everyone further. Tit for tat shows that you as an advocate are not really thinking about the resolution process; you are just looking for a witty comeback.
- “This offer is only on the table for the next 10 minutes. After that, we start going down.”
Does this accomplish anything? Isn’t it true that if you got everything you wanted in the next 15 minutes, you’d still settle?
- “We’re wasting our time!”
We never know until we try.
- “That’s ridiculous!”
That phrase is totally meaningless.
- “We’re insulted by that demand!”
This is not a good time to show your sensitive side.
- “We’re insulted by that offer!”
Same thing.
- “We’re done!” or “We’re outta here!”
I’ve stood in the doorway before. So far no one’s pushed me aside.
- “They’re acting in bad faith!”
Just because someone disagrees with you, that doesn’t mean that that person is acting in bad faith.
- “It’s not the money; it’s the principle!”
This is my all-time favorite.
As my husband says, “When someone tells you ‘It’s not the money,’ it’s always the money.” My husband is a smart fellow.
So the gist of these two discussions is: Don’t do any of these ten things when you are at a mediation session with your client and you will have a much better shot at coming out at the end with a good settlement for that client. And isn’t that what you’re after?
© Debra Scudiere – 2015