Chapter 9 A Time of Reckoning

• Jurisdiction: United States

Chapter 9 A Time of Reckoning

At this late stage in a mediation you and your client may be feeling that you have been bled dry—physically, mentally, and emotionally. Welcome to your "near deal experience." A settlement seems so close that you can not only see it, you can feel it, hear it, even taste it. Yet a gap remains.

You and your client have labored hand in hand with the mediator to reach this point. Your frayed nerves and exhaustion tempt you to throw your hands up and vent your frustration. You might blame your opponents for not bending as much as you perceive your room has. Or you may lash out at the mediator (feel free, it's part of his job description). There even may be some infighting between you and your own client. You may well be tempted to call it a day. Think again. It is always best to stay and try to finish what you started. You are in the twenty-fifth mile of a marathon. Don't quit now. Too many parties assume that if a case doesn't conclude on mediation day, the discussions and momentum can be carried forward through online communications or phone calls. Especially in multiparty mediations, this is a dangerous assumption. There is no substitute for face-to-face contact between the mediator and participating parties. Additionally, the reality of hectic professional schedules and the inability of a mediator to reach you or others in a timely fashion make post-mediation negotiations frustrating and highly inefficient. It is well worth the time to stick around, if at all possible.

This is the perfect time to, in mediator lingo, "go to the balcony." Again, take a step back and "look around." Survey the landscape. Get your bearings. See how far your day's work has brought you. And then try to make a rational decision in advising your client. Yes, you have been encouraged to "keep your eyes on the prize," but sometimes the prize comes at too steep a price. Always remember that chasing down Moby Dick is not worth the loss of your vessel. But also know that "the prize" is a dynamic concept, based on the overall circumstances of your particular case and any newly discovered issues during the mediation. Focus on your net returns from a mediation. Let me provide an example.

Assume a personal injury products liability case where past medical expenses are $375,000 and future medical expenses are $25,000. The mid-range of general (pain and suffering) damages is $700,000. This all equals $1.1 million, but there is comparative negligence exposure that...