Someone once said that the first, second, and third reasons mediations fail is because the ultimate decision-maker is not present and participating.
After conducting hundreds of mediations myself, I understand exactly what they meant.
I know our chances of a productive mediation are lower when I hear comments like:
“My client couldn’t get the day off, but they’re available by phone if you need to talk to them.”
“My client has a business to run, but I will keep them updated and seek approval if we get to a number.”
“The adjuster is available by phone if we need them.”
“We have authority only up to a certain number and will need to call someone else for more.”
I am fortunate to work with experienced and skilled attorneys who usually are well prepared for the mediation day, which we often schedule months in advance. By the time of the mediation day, counsel have submitted detailed mediation briefs, prepared their clients for the process, and possibly had pre-mediation calls with the mediator or each other.
But a lot happens on the mediation day itself.
The mediator occupies a unique position. The mediator analyzes briefs and submissions and has candid conversations with both sides. The mediator can zero in precisely on where both sides see the case differently. Maybe there is a disagreement about the underlying facts, what did or didn’t happen. Maybe the facts are mostly undisputed, but there is disagreement about how the law applies to those facts. Maybe there is disagreement about the damage models, likelihood of success or failure on certain legal theories, or even the likely litigation trajectory for the particular dispute.
We can make enormous progress closing the information gap, assessing risk, and pressure-testing likely settlement ranges.
But settlement becomes much harder when the person who must ultimately say “yes” has not participated in the evolution of the negotiations.
A lawyer’s end-of-day call reporting that the realistic settlement range is materially different from the authority granted before mediation may not be well received if they didn’t participate in the process that got us there. They didn’t experience the evolution of negotiation positions, didn’t hear weaknesses or risk in their case from a neutral rather than an adversary, and didn’t develop trust that the mediator is giving a realistic assessment of ranges of possible resolution.
People are far more likely to support a decision when they participate in the process that leads to it.
When a decision-maker is not involved, settling in a range higher or lower than previously contemplated is more likely to feel like capitulation than a reasoned decision under the circumstances.
Practical Takeaways
- Identify who truly has authority before the mediation.
- Ensure that person is engaged and participating throughout the day.
- Avoid relying on relayed summaries.
- Ensure the decision-maker remains available and engaged throughout the mediation, even when participating remotely.
- Understand that realistic settlement ranges and positions can and should evolve during mediation.
To be sure, many cases settle without the ultimate decision-maker actively participating throughout the mediation. Sometimes schedules, business demands, or personal circumstances make that unavoidable.
But mediation is an important investment of time, money, and effort. When the people who ultimately control the decision are actively engaged in the process, the likelihood of reaching a resolution generally improves. To maximize the chances of settlement, ensuring that the true decision-makers participate meaningfully throughout the mediation may be one of the most important investments we can make.
