Why mediation fails before anyone sits down at the table

By Daniel Cassidy, Esq., Exclusive Neutral — SSAM ADR

Everyone knows the basics. Know your case. Know your file. These are table stakes in litigation, and by the time most attorneys walk into a mediation, they have done that work.

So why do so many cases still fail to resolve?

In my experience, the answer almost never comes down to the facts of the case. It comes down to preparation. Specifically, the kind of preparation that most attorneys overlook entirely.

Knowing your case is not enough. Every stakeholder needs to know it too.
Before you walk into mediation, the question is not just whether you understand the strengths and weaknesses of your case. The question is whether everyone who has a say in the outcome does.

On the plaintiff side, make sure these people are prepared and aligned before the session:

• Your client
• Anyone who influences your client: a spouse, a parent, a close friend who will get a call the moment mediation ends
• Any referring attorney with a stake in the outcome
• Lien holders who could complicate a settlement if they haven’t been aligned in advance

On the defense side, make sure these people are prepared and aligned before the session:

• The claims rep in the room
• Every supervisor who may need to sign off on authority beyond what the rep can offer
• Internal decision makers at the firm
• The client, where applicable

The moment a number gets put on the table and someone in that room, or on the other end of a phone call, is hearing it for the first time, the mediation is in trouble. Not because the number is wrong. Because the conversation that should have happened last week is now happening under pressure, in real time, with everyone watching.

Have the hard conversations early.
Once a genuine decision has been made to resolve a case, the sooner and more comprehensive those conversations happen, the better. Discuss the numbers. Discuss risk/reward and what is sustainable. Discuss what resolution actually looks like for everyone involved. Not just the attorneys in the room, but the people who will ultimately have to live with the outcome.

The cases that settle are almost always the ones where that work was done before anyone sat down at the table. The cases that don’t settle are almost always the ones where it wasn’t.

Preparation is not just knowing your file. It is making sure every person who matters knows it too and has already had the conversation you don’t want to have in front of me.

— Dan Cassidy