ADR CORNER
ADR CORNER
Preventing:“ That Mediation Was a Waste of Time”
HANK JACKSON
When the parties proclaim, " that mediation was a waste of time,” the mediation process is unwell. Like a sick patient with symptoms, we need a diagnosis.
What is a Waste of Time Mediation?
A waste of time mediation is not simply one that ends in impasse. Mediations can be beneficial to the parties absent a settlement, including( 1) better understanding the parties’ positions,( 2) identifying key factual and legal issues,( 3) exploring settlement alternatives, and( 4) identifying next steps in moving the litigation or settlement forward. It is only when the parties gain nothing of value from the mediation that it is a waste of time.
Could the parties have failed to understand or appreciate the unique nature of mediation? Were they only mentally prepared for combat, to prove they are right, and receive complete justice. When parties attend a mediation without understanding its differences from other phases of litigation— the mediation can be a waste of time. Moreover, a party( although fully understanding the different nature of mediation) may intentionally thwart the mediation. The reasons can be varied, including strategic and tactical reasons to keep the litigation continuing. Whether there is a misunderstanding of the nature of mediation or a conscious intent to hinder it, the parties’ absence of a mediation mindset can easily result in“ that mediation was a waste of time.” about those risks? Granted, a one hundred percent exchange of information is not required for a meaningful mediation— such is often not a realistic expectation. However, there is a level of exchanged information that is necessary to prevent the mediation from being a waste of time. That level will depend on the particular case and possibly the parties involved.
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Differential Diagnosis
Keeping with our sick patient analogy, a differential diagnosis may discover the cause of the valueless mediation. A differential diagnosis considers the various diseases( causes) that have the same symptom( waste of time mediation). A few causes to consider:
Absence of Mediation Mindset
Mediation requires a different mindset than other phases of litigation. Litigation is fundamentally compulsory by nature— subpoenas, orders compelling, judgments, foreclosures, and garnishments. In contrast, mediation’ s goal is voluntary mutual assent. As explained in Chapter 44, Florida Statutes, mediation is to encourage disputing parties to reach a mutually acceptable and voluntary settlement through, among other things, identifying issues, fostering joint problem solving, and exploring settlement alternatives.
How do you prevent or mitigate this situation? Counsel and the mediator can better prepare the parties concerning the nature of mediation before the mediation session— adhering to the adage that an ounce of prevention is worth more than a pound of cure. If at the mediation session, the issue should be addressed promptly recognizing that having the parties in a mediation mindset is practically a prerequisite to a beneficial mediation.
Insufficient Information Exchange
A core component of mediation is exploring settlement as an alternative to continued litigation. Consequently, the parties need relevant information about the other parties’ claims and defenses to formulate settlement terms and weigh alternatives. If sufficient information has not been exchanged at the time of the mediation, a comparison is simply undoable. Stated differently, how can a party reasonably assess their risks in litigation without sufficient information
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