Stories Solicited by ACBA ADR Executive Committee

The ACBA ADR Committee needs your help.  On November 7, 2018, a panel of mediators will talk about problematic and unproductive strategies and behaviors they have seen litigators employ. On December 5, 2018, a panel of litigators who make frequent use of mediators will talk about problematic and unproductive strategies and behaviors they have seen mediators use. Panelists will discuss examples from their own practices, but we think the presentation would be most useful if the panelists could refer to your examples, too.
 
We recognize that you are busy but ask that you take whatever time you can to consider the questions below and reply to mediate@hbh.law by October 19th with stories of your experiences. We will edit for clarity and to protect your identity, then provide our panelists with your descriptions. We also welcome examples of behaviors that may not clearly fall within the questions below. 

Thank you,
Margaret Hand, Anne Mania and Irene Takahashi

Mediators, Questions for You

Behaviors Prior to Mediation

If you have telephone conferences with counsel prior to mediation, describe a situation in which counsel’s behavior on the call created obstacles to settlement.  Please describe the behavior and the effect that behavior had on you and the other counsel on the call.

What is the most unproductive thing you have read in a mediation statement and why? Please describe the context in which the statement was made, the parties’ relationship to one another, the effect it had on you to read that statement and the effect you believe the statement may have made on counsel and the parties.

Please describe any other memorable instances of counter-productive behavior in the days or weeks preceding mediation.

Once Mediation Has Begun, Early in the Process, for Example, in Joint Session

Describe a situation in which the behavior of an attorney early in the mediation process (i.e., early in the day on a single-day mediation or in the first session of a multi-day mediation) created obstacles to settlement.  Please also describe the behavior.  What effect did the behavior have on you, the other attorneys and the parties?  What was the attorney’s objective and what might s/he have done to pursue that objective more effectively?

Describe a situation in which the behavior of a party early in the mediation process (i.e., early in the day on a single-day mediation or in the first session of a multi-day mediation) created obstacles to settlement.  Please also describe the behavior.  What effect did the behavior have on you, the other attorneys and the parties?  What was the attorney’s objective and what might s/he have done to pursue that objective more effectively?

Negotiation Strategy

Describe negotiation strategies that strike you as counter-productive or doomed to failure.

After It Becomes Apparent the Case Can Settle

In many mediations, there comes a time when the mediator knows the case can settle.  If you have seen counsel or a party torpedo the process after getting that close to agreement, please describe the behaviors that ruined the chances of settlement.

Preparing the Settlement Agreement, At the Mediator’s Offices

After the parties have reached an oral agreement and counsel has begun working on the written terms of that agreement, if you have seen an attorney or a party undermine the process, please describe what happened.  If you have insight into why the attorney or party behaved as s/he did, please share that insight.

Litigators, Questions for You

Mediation Preparation

In the process of preparing for mediation, if a mediator has ever made statements or exhibited behaviors that suggested to you the mediator was biased in favor of a party, attorney or a particular outcome, describe the statements and behaviors.  How did the statements or behaviors affect you or your client?  If you have any insight into why the mediator spoke or behaved in a biased manner, please share those insights.

Often, mediators send to counsel and/or the parties suggestions for how to prepare for mediation and what to expect from the process.  If you have received suggestions you thought inappropriate or counterproductive, please tell us what were those suggestions.

During Mediation

At the beginning of the mediation, if a mediator has ever made statements or exhibited behaviors that suggested to you the mediator was biased in favor of a party, attorney or a particular outcome, describe the statements and behaviors.  How did the statements or behaviors affect you or your client?  If you have any insight into why the mediator spoke or behaved in a biased manner, please share those insights.

Describe an instance where you felt there was progress being made in a mediation and something the mediator did derailed that progress. What did the mediator do, and how did it derail the progress? What would you have wanted the mediator to do instead.

Describe an instance in a mediation where you/your client lost trust in the mediator’s ability to effectively manage the mediation. What did the mediator do and what was the effect on you/your client?

Mediator’s Compromise, Evaluative Statements

Occasionally, the attorneys or counsel ask the mediator to suggest a take-it-or-leave-it settlement, sometimes called a “mediator’s compromise.” If you have had bad experiences after agreeing to a mediator’s compromise, please describe those experiences. Tell us about the context, why you agreed to the process and why the process produced a bad outcome.

Litigators and Mediators, a Final Question

Have you had a bad experience in mediation you would like to tell us about, something not evoked by one of the questions above?