October 12-18 marked the American Bar Association Section of Dispute Resolution’s 5th Annual Mediation Week campaign. The American Arbitration Association (AAA) and other ADR providers promoted mediation during the week by offering free educational programs aimed at raising awareness of mediation to the general public. On October 14, the AAA presented “Stories Mediators Tell: Best Practices and Tips for a Successful Mediation.” The program, held in New York City, featured Goetz Fitzpatrick LLP partner Neal M. Eiseman, who is a mediator and arbitrator with the AAA. The following is taken from part of Neal Eiseman’s remarks regarding the 13 top reasons for a failed mediation:
1. The wrong person is at the bargaining table–one who lacks ultimate authority to settle the case.
2. Failing to get the parties’ commitment to a fair and candid mediation process.
3. In the rush to save time and money, the parties mediate prematurely.
4. Failing to vet potential mediators to insure that the mediator possesses expertise in the subject matter of the parties’ dispute.
5. In their pre-mediation submissions, the parties fail to identify the key issues that must be resolved for the mediation to succeed.
6. The parties believe they must “win” the mediation because they were not properly prepared for the mediation session by their counsel and/or the mediator.
7. A non-party to the mediation has his or her “own agenda” and clouds a party’s evaluation of the case and the probability of success in court or arbitration.
8. Refusing to reveal information or positions that need to be addressed.
9. Lack of civility to the point where, out of principle alone, the parties become entrenched in their positions.
10. Insisting that the mediator tell you the “right” settlement number.
11. Totally unrealistic and/or insulting offers, counteroffers and demands.
12. The mediator inadvertently reveals information to one party that was communicated confidentially by the other party.
13. Allowing settling parties to leave the room without a written, executed settlement agreement.