Why spend so much time and effort? The opposition is unreasonable. The offer is an insult. We are wasting our time and money!
Perhaps so, but not so fast. A valuable opportunity may pass you by.
At a recent Court ordered Mediation I was faced with a challenging set of circumstances. The parties had failed to exchange documents and discovery in a meaningful way. It was clear from the onset that this mediation would result in an Impasse. Why proceed any further? It was also clear that there was some bad blood between the parties and an early decision was made by me to break the parties into separate caucuses to diffuse some of this animosity.
After private discussions with the parties, it was revealed to me that each party had separate axes to grind. Plaintiff was furious with opposing counsel’s delaying and obfuscating tactics, while the Defendant was upset with the failure of the Plaintiff to communicate in a meaningful way and thereby eventuating in litigation.
I was able to persuade Plaintiff and Plaintiffs counsel to allow Defendant to set forth some of these complaints directly to the Plaintiff (and asked Plaintiff to be patient and try not to respond in a defensive manner). While this was occurring, gains were being made by both sides. Defendant got some of his anger off his chest, and perhaps by so doing might be more amenable in the future to a reasoned approach to resolve this case. Plaintiff and Plaintiffs counsel, on the other hand, were able to hear what Defendant had to say, assess some of the pros and cons of his argument, and perhaps more valuably, got to assess the Defendant’s demeanor in a more open forum, far less structured and restrictive than a deposition or trial situation. Whether Defense counsel’s decision to allow this open dialogue to occur is a question open for discussion.
By the end of the mediation the parties had at least agreed to exchange discovery on a specific time-line. Yes, the mediation ended in an Impasse, as earlier predicted, but gains were materially achieved by both sides.