The lazy days of summer are behind us and most people return in
September with a renewed purpose and determination to take care of
business, stop procrastinating and get back to work. In those cases
where a scheduled mediation hearing is continued more than once, the
mediator is well-served to inquire and consider the basis for the
continuance. Is there a hint that the parties can work out their
differences without the aid of a neutral third party? Has one party
lost hope that any meaningful settlement can be achieved? Is one party
preparing to file bankruptcy, go out of business or abandon the claim?
Is there posturing going on about how the fees should be split and who
should be at the bargaining table if meaningful negotiations are to take
place? Do the parties not wish to invest in the settlement by paying
the mediator's fees in advance as is required by their engagement? Does
one party not wish to pay their lawyer to pursue this avenue? Has the
Plaintiff or his lawyer lost interest in the case and reached the
conclusion that it's not worth pursuing?
As in all facets of
mediation, make no assumptions. Still, I think it's fair to ask the
party who requests the continuance why they are seeking it. Sometimes,
it can give valuable clues into the risks and benefits to settlement
when they ultimately do show up for mediation. How do you handle
postponements and as lawyers, do you reveal the reasons to your
mediator?
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