Debra Scudiere, Kay Casto & Chaney PLLC

I love the whole process of mediation, and those of you who know me know that I’m an optimistic, upbeat kind of gal. However, I warn you ahead of time that this discussion is purely negative. It is all the “don’t’s” for you to remember as you prepare for and participate in mediation as an advocate for your client. In fact, I may not tell you a single thing that you should do. Here in Part I, let’s take our “Don’t Ever Do This” list from 10 down through 6:

10. The attorney who twists a positive move from the other side into something negative.

I tell the Plaintiff that the Defendant wants to apologize, and the Plaintiff sniffs, “We don’t want their stinking apology.”

I approach the Defendant with a $200,000 drop in the Plaintiff’s demand, and Defense counsel remarks, “See, they’re not really serious.”

I tell the Plaintiff that the Defendant is willing to dismiss his Counterclaim, and the Plaintiff comes back with, “That doesn’t mean anything. He never had a leg to stand on anyway.”

9. Anyone who doesn’t really listen to the other side.

A Defense counsel who pooh-poohs the pain and suffering of a person with a broken collar bone even after the Plaintiff describes what he has been through is not doing his client any favors by being a poor listener. I submit that it is actually a responsibility of each side to listen openly to what the other side is saying. Remind me some time to tell you about the gal who physically turned around in her chair away from her opponent every time he started to speak; that didn’t turn out so well for anyone involved in the mediation that day.

8. An attorney who says he is 100% sure he is going to win at trial or on summary judgment.

In one mediation, I asked Plaintiff’s counsel how sure he was that his side was going to win on a pending summary judgment motion. The reply was that he was 100% sure; there was no way, he said, that the Judge was going to grant the motion. A few days after the unsuccessful mediation, I received a voice mail from Defense counsel that the Court had granted the motion. I wonder to this day about how Plaintiff’s counsel felt about the mega-million-dollar offer that he had left on the table.

Plus, anyone who is reading this blog who can accurately predict what a Judge or jury will do is in the wrong business; you should be able to make a fortune starting up your own jury consulting service.

7. An attorney or party who is rude, including (but definitely not limited to):

– Parties or attorneys who won’t shake hands at the end.

– Those who interrupt while the other side is speaking (“just to correct this one thing”).

I hate to sound old fashioned, but I wonder whether these folks’ Grandmas would be proud of them for showing such bad manners. Just because we are involved in a lawsuit, that does not mean that we leave common courtesy at the door.

6. An attorney who says, “We haven’t had time to evaluate our case yet.”

Say what? I almost put this as my number one annoyance, but I didn’t because it doesn’t happen very often. The trouble is that, when it does happen, it’s a disaster. On those occasions, at least the first two or three private caucuses are spent with the attorney and his client trying to figure out what they’re doing.

The best thing to do is to meet with your client a day or so ahead of time, go over the facts of the case, and come up with a range within which you would settle. You need to explain to your client that the negotiation process is fluid and that you and he may learn things at the mediation that cause your expectations to change.

We’re only halfway through my Top Ten List. Be thinking about the mediations you have attended and see whether you can predict the bad practices that I peg in Part II of our discussion as being the death knells to a successful mediation.

© Debra Scudiere – 2015