Top 10 Ways to Botch Up a Mediation

As mediation counsel at Upchurch Watson White and Max I obviously believe wholeheartedly in alternative dispute resolution and the stress that it takes off of the judicial system and the parties both financially and emotionally. There are still a few naysayers out there as Diane Levin points out in her March 4th blog. Although few and far between, some attorneys are openly hostile to the concept of ADR while others are a bit more passive in their disgust. Here are a few of the techniques my colleagues and I have encountered from those passive-aggressive practioners. And, yes, these really have happened.

1) Don’t prepare at all. You know the file, right? To prepare is just a waste of your client’s money.
2) Read the newspaper throughout your mediation. This will really give the opposing attorney the warm fuzzies as he is offering his opening remarks and set a pleasant tone for the rest of the day.
3) Be sure to blast the opposing party and their case during your opening statement. There is nothing better to create a sense a feeling of goodwill and cooperation.
4) Take a long lunch break out of the office. This will certainly break the rhythm of the day and short circuit whatever progress has been made.
5) Overinflate your client’s expectations regarding what their case is worth and encourage them to attach that value to something completely unrelated to the case such as a new house, erasing existing debt, etc…
6) Bring a party to the mediation with little to no authority to settle.
7) Loudly announce multiple times during the mediation that you and your client are preparing to declare impasse and leave for the day.
8) In a true showing of good faith begin the mediation by putting on the table the exact demand indicated in the complaint.
9) Don’t discuss the weaknesses of your case at all with your client. Your job is to tell them what they want to hear not that the wheels may fall off the bus at trial.
10) Come to the mediation covered in pet hair and proceed to brush it off your attire throughout the mediation for all to enjoy. (author’s note: I love all animals just not animal hair and just not in my office)

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