Mediations end in settlement the vast majority of the time, but not every case will resolve on the day of mediation. I have been asked “how do you know when to walk away?” But the more important question is “what’s next?”
As a lawyer, I never attended a mediation that I considered a waste of time. I always learned valuable insights about my client’s case for trial and, more often than not, I could see a future path to settlement.
Here are productive ways to end the day, spend the next day and move forward after a so-called “failed” mediation.
Narrow the Gap as Much as Possible: Provided the mediator is comfortable that the parties are being relatively candid about their case evaluation, the parties should be sharing the limits, or close to the limits, of their authority. The further the parties are from each other, the more it will appear to be a waste of time to restart the negotiation later.
Leave the Last Offers Open: Both parties should leave their last offer at mediation open for a set period of time, at least a week. It sends a signal that you are willing to continue to negotiate and that both parties will continue to evaluate their risks and settlement posture.
Understand the Reasons for the Gap in Case Evaluation and Determine Whether Steps Can be Taken to Narrow It: Pinpointing where the parties’ case evaluations differ often leads to a clear roadmap to a future settlement. For example, if the opposing party does not accept your assumptions about damages, you may need an expert to provide a damages analysis. If the credibility of the parties’ testimony is the primary obstacle, taking the deposition of a corroborating witness may shape the narrative. I encourage counsel for the parties to discuss what steps can be taken within the confines of the case schedule to narrow the issues in a cost-efficient way.
Debrief with the Mediator and Opposing Counsel: Some mediators are more reluctant than others to share their opinions about the case. Although the mediator has not lived with the case for as long as you have and cannot know the details in the same way that you do, their opinions more closely resemble what a trier of fact will understand about the case. Their neutrality should provide a valuable outlook. In fact, even if you did hear their opinion on the day of mediation, you might want to debrief with the mediator a day or two later. On reflection, I have often thought about a case differently a day or two after the mediation. In addition, if your relationship with opposing counsel is productive, you should engage with them in a reflection on why the case didn’t settle at mediation and whether steps can be taken to narrow the gap.
Reevaluate the Case: Your case evaluation should never be set in stone. Discussions at mediation are intended to open your eyes, and the eyes of your client, to the other side’s best evidence and arguments, the challenges to proving some of your long-held assumptions, and the narratives that you or your client have difficulty articulating. The day after the mediation, it is critical to ask yourself, “what did I learn?” If you didn’t learn anything, that may tell you something about whether you were listening with an open mind at mediation. Take a day or two to absorb what you heard. You should then candidly discuss with your client how your case evaluation may have changed after mediation. Ask them what they learned and whether they would be willing to make further concessions to achieve resolution.
Plan a Settlement Strategy: Here again, conferring with the mediator about a settlement strategy is encouraged. The mediator has insight into what the other parties are thinking and can help you determine next steps to achieve settlement.
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