Ten Signs Your Mediation Is Headed for Trouble

Preparedness for all potential developments is the best defense to a breakdown in discussions

“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win,” writes Sun Tzu in his book, The Art of War. Though mediation should be less adversarial than war (or litigation), the same principles of battlefield readiness apply.

Yes, preparation is a key component of mediation success but what about the variables that cannot be planned for? What about the cross-armed resistance of a participant who has no interest in mediation beyond getting to court, or the company representative with limited negotiating authority, or the interpreter who feels it necessary to give legal advice along with their translations?

Having conducted well over a thousand mediations in a variety of areas (including the fields of employment, estates, personal injury, construction and commercial law), I have seen and adapted to many different situations that were both expected and unexpected. What follows are 10 troubling signs that I have experienced, which mediators, lawyers and parties can also watch out for, along with suggestions on how to re-boot when the process appears to be going sideways.
 
1.  Let’s get this over with

Mandatory mediation (a hallmark of our justice system in Ontario in Toronto, Ottawa and Windsor) can bring unwilling participants to the table. They may be indifferent to mediation, or see it as an opportunity to draw blood, “win” or make their point. Others see it as an obstacle to litigation.   Tip: Talk facts with the resistant parties weighing the value of privacy, self-determination and a timely resolution achieved through mediation against an uncertain and potentially costly court decision that could take years to obtain.  

2.  The disempowered decision-maker

Occasionally in mediation, there is one side that is represented by someone with limited authority and little room to negotiate. This can stall the process.  Tip: Be proactive. Ask the parties in advance to confirm full authority particularly when corporate entities are involved. Ask if senior decision-makers can be available to participate in person. If that’s not feasible, I encourage senior decision-makers to participate by phone or video conference so they can listen in on my introduction and contribute to an opening joint session (if there is to be one).  This brings them into the room and invested in the process.  I also insist that they remain on stand-by by phone or video conference throughout the day. Finally, if the senior decision-maker can't participate in real time even in a limited capacity, I will encourage the representative with limited authority to make a call to seek further authority if the parties are close to a deal.

3.  More than faith

There are occasions when parties come to mediation early before going through an oral discovery process (for example, in cases where the facts and issues are straightforward and/or not in dispute or the amount of money involved is small and the parties are motivated to carefully manage litigation costs).  As long as the parties have exchanged the pivotal pieces of evidence they intend to rely on to support their case, mediating before discovery can be productive.  However, without hard evidence in hand (not just the faith that it exists) the parties are not in a strong position to assess the relative strengths or weaknesses of their case at mediation.  Tip: If evidence exists that is critical to an assessment of the strengths of a party's position, exchange it well in advance so it can be properly reviewed and considered by the other side.  And, if it hasn't been exchanged in advance, make it available at the mediation even if it involves chasing it down and having it delivered electronically or by some other means.

4.  Getting to know you

While thankfully the exception, I have witnessed that first awkward meeting between client and lawyer at mediation. On those occasions, I question how well prepared the client is for the mediation process. Does the client understand how mediation differs from  the examination for discovery and courtroom processes?  Have lawyer and client discussed a mediation plan (for example, whether they want a joint session or whether the client will speak and, if so, when and on what topics)?  Have they developed a negotiation strategy?  The client may have been prepared in advance by a member of the lawyer’s team (a junior lawyer, a clerk, a paralegal), but if the lawyer and client are meeting for the first time at mediation, this is unsettling.  This dynamic can be particularly challenging when a new lawyer is parachuted in as a last minute fill-in and is new to the file. Tip: Find out what the lawyer and client need to do to get ready and on the same page, and then give them the time and privacy to do so. Better to start late than have the mediation end early because of a lack of preparedness.

5.  Power imbalances

Power imbalances at the mediation table can negatively impact a negotiation. An imbalance can exist for various reasons: past relationship dynamics between the parties,  one lawyer has more experience, expertise or knowledge than opposing counsel, or one party is better prepared or more knowledgeable about the facts of their case than their counterpart.  Whatever the inequity, the job of the mediator is to try to re-balance those scales without sacrificing neutrality and objectivity. Tip: Mediators faced with this challenge need to find ways to coach the weaker side about the process as much as possible, without compromising their neutrality, and ferret out and communicate the weaker party's needs to the other side.

6.  Dreaming in technicolour

A client over-values their case and then sells their romantic vision to their lawyer.  Tip: Ask reality-testing questions that challenge the party to support their theory and examine potential flaws in their vision of the case. Tactfully and methodically examine the evidence and legal precedents they rely on to support their view of the case. Place the onus on lawyer and client to justify their position, and tactfully suggest they adjust their expectations if support for their position is weak or non-existent.

7.  A ghost in the room

This “ghost” or third-party may be an interpreter, family member or friend in the room who can't resist voicing their unsolicited opinions, particularly during a break in the action or in caucus. This can be extremely divisive to the process, possibly driving a wedge between lawyer and client and upsetting momentum built during the course of mediation.  Tip: Seek information in advance about the attendance of third parties, including their relationship to the party they are there to support, and what, if any, role they plan to play at the mediation. As a matter of practice, I communicate this information to the other side and get their consent to have the third party participate subject to any limitations. If the third party's participation becomes problematic during the mediation, I will have a quiet word with counsel to decide how to deal with the individual.  A gentle reminder to an overzealous family member or friend that they're there to quietly support and observe, usually does the trick.  Where unwanted interjections persist, the third party may be asked politely to take a break or to wait in reception.  In extreme cases, where, for example a paid interpreter has gone rogue and taken on the role of legal adviser, I have stopped the mediation and met privately with the interpreter to review their role and the ground rules for their participation. 

8.  Warring lawyers

Two lawyers have a hate-on for each other from past adversarial interactions. This can create storm clouds over the mediation and quickly turn the process into a disruptive power struggle. Tip: Take each lawyer aside and privately request that they park their past interactions for the day and focus on acting in the best interests of their clients. Effective lawyers, with their client's best interests at heart, will get the message.

9.  Lost in translation

The ability of a participant to understand legal and technical terms in English is critical to the mediation process.  For some participants, English may not be their first language making the comprehension of advanced terminology and concepts difficult, if not, impossible. Tip:  Retain a professional interpreter for participants who may require translation of English beyond the conversational level. Some lawyers may have considered an interpreter but decided against it due to the expense, substituting an interpreter with a family friend or someone from their office.  It's a relatively small cost when you think about the difference it makes between having a participant that can follow the process, consider advice and give instructions to counsel and one who cannot.


10.  The home turf advantage

You will have my complete attention and engagement. All I ask is that you provide the same courtesy and commitment.  I speak these words in some form at the beginning of every mediation. As clear as I try to be, full engagement may be challenging for some when the mediation is hosted at the office of one of the lawyers or parties, rather than at a neutral site. The host may be distracted by other work or tempted to take calls. This lack of focus can result in a breakdown in process flow and lead to disjointed and unnecessarily protracted settlement discussions. Tip: Do your best to limit distractions. When mediating on someone’s home turf, where possible, suggest the use of meeting rooms that are separated from the host’s regular work area.