Much has been written advising of various tips to make mediations work. Let’s address ways folks are making sure their mediations fail! Here are a few:
Mediating too early: Early stage mediation is a very effective method to minimize risk, and control transaction costs. However, for these to succeed, it is necessary for the parties to agree that they will mediate on the information possessed, or to engage in a pre-mediation exchange. Early mediations fail when significant unknown information is brought out, which requires further investigation or formal discovery.
Selecting the wrong mediator: It is a simple fact that certain mediations require core interpersonal skills. Death, catastrophic injury and employment cases require a mediator who is good with people, and possesses empathetic listening skills. A head banger or mediator with an aggressive and evaluative style can kill a deal in emotional cases. Similarly, complex multi-party cases with complicated factual issues require a firm hand that will manage the process and understand the issues. So find a mediator trusted by both sides, with the skill sets for the people, process and issues.
Expertise in facilitation trumps subject matter expertise every time!
Not preparing the mediator: Mediators need information, submitted early enough for us to design the most effective process. Not taking the time to have a pre-mediation call, or submitting a well-written mediation oriented brief (more on this later), leaves the mediator guessing regarding the relationship between parties and counsel; the emotions of the case; and other key issues regarding the mediation process.
Similarly, supplying too much material is unhelpful. A pile of exhibits, not referenced in the brief or highlighted for relevance is just a pile of paper. Tell the mediator what should be reviewed, and append only that which is relevant.