The Top Fifteen Saboteurs of Mediation

Things Lawyers Do that Make a Mediator's Job (and Mediation)
More Difficult Than It Needs to Be:

1. Refuse to let their clients speak
2. Refuse to allow the mediator to address the client
3. Insult opposing counsel
4. Schedule the mediation for a full day and announce after an hour that they have to leave in two o'clock
5. Arrive without a necessary person (wife of a client, insurance representative) or with an obstructive person whose presence is not necessary
6. Fail to communicate anything other than numbers (i.e. no reasons)
7. Fail to prepare - "the case that is prepared well for trial settles, the case prepared for settlement ends up being tried"
8. Fail to communicate to the mediator what they want from the process
9. Being too aggressive - not sharing information the other side requires to evaluate its case
10. Being too cooperative - making too many concessions with the other side is not making reasonable exchanges
11. Increase demand (plaintiff) or decrease offer (defendant) from last time counsel spoke before mediation
12. Provide brief to mediator too late for proper preparation
13. Make a confrontational or polarizing opening statement
14. Take an unreasonable (and unreasoned) position re proposed settlement amount and then 'refuse to bid against themselves'
15. Try to slip in terms at the end that were not agreed to or try to extract additional moneys (plaintiff) or discounts (defendant) for things that were assumed (i.e. confidentiality)

Published with permission from the International Academy of Mediators

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