ADR CORNER
ADR CORNER
If At First You Don ' t Succeed... Re-Mediate!
ALFRED LASORTE JR
Like most mediators, I’ m proud of my mediation track record- most of my cases settle. But sometimes they don’ t, for various reasons.( In fact, some cases really shouldn’ t settle at mediation, but that’ s a topic for another article!)
In a recent column here, I discussed the many benefits that can still accrue when a mediation doesn’ t result in settlement.(“ The Mediation Glass is Always Half-Full,” May, 2025). But sometimes it makes sense to give mediation another try after the first effort fails. Unsuccessful litigants often come back to me for a second shot, and we get the case settled. Not always, but often.
What makes a case a good candidate for another try at mediation? The keys are understanding the reasons the first mediation didn’ t work, and evaluating whether changed circumstances have increased the odds of success.
Often, a mediation fails because it takes place too early in the case, when little discovery has yet been taken and the parties and lawyers are still in the dark as to how important issues will play out at trial.
I’ m a big fan of mediating early, before everyone has spent a ton on attorney fees and costs( see my November, 2022 article here,“ Is It Ever Too Early To Mediate?”). But fear of the unknown is a powerful thing. Sometimes, early in the case, that fear is too great for settlement to take hold.
The remedy? If mediation fails, take some discovery, then give mediation another shot. Not too much discovery, particularly in smaller-value cases. Nothing kills the settlement buzz more than when fee bills are higher than the amount in controversy. So be judicious. Just depose the opposing party and their expert and get the crucial documents.
Clarity comes with knowing the case’ s essentials- on both sides. With this information in hand, reassess your client’ s case and float possible re-mediation with opposing counsel. Then call me, and let’ s get that case settled after all.
Changes in client circumstances can also increase the chances for success the second time around. A corporate client ' s bad fiscal year can put pressure on its ability to fund extensive litigation, making a compromise settlement more attractive. An individual client’ s divorce, or job loss or other personal change can similarly give them an incentive to wrap up the case and stop the fee bills from running up.
Post-mediation court rulings that narrow the case’ s focus can remove stumbling blocks to settlement, increasing settlement chances for a second mediation. Often, a mediation fails because an important motion is pending, which one side claims will likely be granted and gut the opposition case. This confidence breeds reluctance to compromise. Once the judge has ruled( regardless which way the ruling goes), both sides have more clarity as to where the case is headed. This narrowed focus can lead to successful mediation.
Once you can conclude that another mediation would serve your client’ s interests, it can still be tricky to set it up. Clients and lawyers don’ t want to project weakness, so they may be reluctant to make the first move toward heading back to mediation.
But there’ s an easy solution. Call the mediator from the first go round. Ask him or her to send all counsel a“ just checking in” email asking whether any new developments may cause another
PBCBA BAR BULLETIN 9 mediation to make sense. Then reach out to opposing counsel. It’ s easier for both sides to indicate willingness if the second mediation is someone else’ s idea.
Not every case is a candidate for a second mediation, though. Recalcitrant clients sometimes just can’ t look at their cases objectively-“ I don’ t care how much it costs, it’ s the principle.” It’ s tough to talk a client out of that position, even if you believe they’ re making a mistake. A second mediation in which the client is just looking for the other side to capitulate and agree with their last demand is usually destined to fail.
So the most important factor is the effect that changes in circumstances have on the parties’ openness to compromise in the name of settlement. If your client( or the opposition) remains dead set on seeing this thing through to trial and appeal, there may be no benefit to a second try at mediation.
When lawyers contact me about heading back to mediation, this is the main topic of discussion. Are the parties more inclined to settle than the first time? Have court rulings, high attorney fee and costs bills or extrinsic changes in the parties’ circumstances really made a difference? If so, let’ s give mediation another try.
After a long career at Shutts & Bowen LLP as a commercial / real estate litigator, Mr. LaSorte is now exclusively a mediator( 800 + cases) and expert witness.( 561) 286- 7994; Al @ LaSorteMediation. com. Alfred A. LaSorte, Jr., P. A. d / b / a LaSorte Mediation.( www. LaSorteMediation. com)
For additional ADR tips and resources, go to https:// www. palmbeachbar. org / alternativedispute-resolution-committee /