Thursday, September 4, 2014

Handling Continuing Continuances of Mediation

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?