Saturday, March 13, 2010
I hate mediation
Last week I had a mediation in a case that had been dragging on for the better part of two years. Things in the case had spun wildly out of control since I had entered the case. No sooner had we cut the head off one party, two others sprung into existence. And they were all filing cross-complaints. And this was as the discovery cut-off was passing.
However, I have to say this, I hate mediation. I mean, I really, really, really despise the process. It's not that I don't like mediators (well all of them anyways). Its not like I don't want settle the case. Its the fact that, in my experience, defendants use the lack, or the pending, mediation to refuse to seriously discuss settlement. Its as if defense counsel has lost the ability to meaningfully discuss ways to resolve a case without having a $875.00 per hour sitting with them.
But yet it is the way the game gets played.
Added on to that, there is the bonus that defense will invariably start with low ball offers and contesting everything so that the first few hours are a waste. And this is in cases where there is clear liability. By the time you get to serious settlement discussions, you've already wasted $2200.00.
In this case, we'd already been through the mediation process. 4 glorious hours sitting in a conference room while the co-defendants (back when there was a manageable number) rejected our initial demand and refused to send over a counter until we had dropped our demand. And then screamed we were negotiating in bad faith for failing to do so. And then there was the whole bit where apparently the neutrals were so neutral that they lied to both sides.
Well, I suppose its better than a judge twisting my arm.
Although I really, really, really hate mediations, my co-counsel and I was finally induced to recommend it to the client when the offered to pay the entire bill for the mediation. So we get there, and waited for 2 hours before we were able to even give a demand in the case. Apparently there multiple defendants, instead of trying to settle the case with us, were trying to establish dominance over each other in the room in which they had been sequestered in.
My co-counsel managed to finish reading the entire Mother Jones (cover to cover) before getting half-way through The New Yorker before that nonsense was sorted out. I ran out of my regular blogs to read on my handheld and had to start trying new stuff out.
Eventually we got down to sending offers to the other side. At which point another melt-down occurred in the other room. They were shocked the know that after the last mediation (which happened before a lot of evidence had come to light) that our settlement number had gone up. Shocker, I know. But what to do when new witnesses are found to testify about how bad the defendants were.
After a series of this nonsense, we managed to settle out one client (who from what I can tell just gave up and said paying us was better than having to be in the same room as the rest of the defendants).
And the fun went on from there. What was supposed to be a three hour mediation turned into an all-day ordeal. The case settled, but I'm going to have to wait just a little while to tell you the rest of the story.