The Closer

A Mediation Newsletter October 2011

Mediation Bogs, Quagmires, and Sinkholes
by James Rainwater

The recent NBA lockout gave me pause to consider the implications on the mediation process. While the NBA and its players' union have a federal mediator, many of the general mediation principles still apply to our everyday litigation cases. Unfortunately, the pitfalls of a federal mediation also apply to our conferences. The difference, however, is that an impasse in a lockout has no fallback to trial.

Fortunately for us, the consequences of mediation do not impact millions of people and millions of dollars. Yet, our conferences are still susceptible to the obstacles of conflict, big or small. Parties become so entrenched that resolution grows seemingly unlikely. This is where the mediator must offer ropes of resolution ideas to the sinking parties.

A party's intransigence can pass onto the attorney, who becomes equally immovable on the issues. At this juncture, it may be appropriate for the attorneys to confer with each other and the mediator, away from the clients. These attorney caucuses can often clear the air quickly and "re-boot" the mediation process.

An impasse may be unavoidable. Yet, it is the duty of the parties to mediate in good faith. And part of that obligation involves the representing attorneys urging their clients toward an acceptable agreement. The attorney can assist the mediator in trying to dislodge an obstinate client. At times, teamwork among the mediator and the attorneys can prove crucial to extricating lost or bunkered parties.

Mediation pitfalls can be caused by any number of factors. The successful mediator will grasp the source of resistance and extract the party from this counter-productive thought pattern. Two of the mediator's most effective tools are logic and creativity. By casting light on the destabilizing issue and offering workable alternative solutions to the party, the mediator may be able to refocus the settlement conference and obtain that mutual agreement.

Rainwater Law