Thursday, July 17, 2014

Staying the Course: Follow Up Care in Mediation

Last week I was on vacation in Lake Tahoe.  While there, I was contacted by one of the lawyers who had come before me in a mediation last Spring.  Now,     some of the pleadings had been amended and new parties had been added.  Not surprisingly, his client had expressed interest in revisiting the negotiations which broke down at a time when the numbers being advanced did not seem 'worth it".  In between my own kayaking and hiking, I made the time to follow up and re-engage both parties in a course leading to settlement and steered them off of their current course towards trial.

In another case, there were numerous decision-makers who had not been present for the full day's mediation session and could not appreciate the effort or logic to the Plaintiff's "last, best and final offer" which came at the day's end.  For them, I spent several hours preparing a written, confidential "mediator's analysis" memo which they could share with the others and use as a basis to discuss their response after they all had a full opportunity to review what I had learned about the facts, the legal liability and the damage claims.  They agreed to consider this and respond to the Plaintiff's demand in a couple of weeks.

For those of us with a busy mediation practice, it's not easy to "stay the course" in this way, but I've been told it is what distinguishes the true professionals from the novices.  Luckily, as I've gained more experience, I find that most cases do settle in a single day, so my portfolio of "open cases" and my risk of being interrupted while on vacation grows smaller!
What do you do to "stay the course" where the mediation doesn't result in a settlement initially?