It Only Takes One Ass to Spell Impasse

How many times have you appeared in a multi-defendant mediation only to discover at 10:00am that one of the key players has taken a “no pay” position while you were expecting a meaningful contribution to the settlement pot? There’s a fix for that. 

Multi-defendant cases present a challenge for even the seasoned mediator. If you are counsel for one of the defendants, know that your risk of impasse is greater because Plaintiffs want a global settlement. You want and need consensus from multiple decision-makers with whom you have no relationship. Adding an additional party actually brings 2-4 more decision -makers (lawyer/client/insurer/in-house) so the number of deciders grows exponentially as parties are added. That’s one reason why intra-defendant meetings in advance of mediation are critical. Sadly, they rarely occur. Why is this? Because there is no rule that says you must meet. Much of what happens in mediation is unexamined custom and habit. If you never learned to schedule a premediation meeting with co-defendants, there is nothing likely to cause you to modify that behavior other than articles like this or engagement letters. My engagement letter is prescriptive – suggesting that lawyers confer in advance – precisely because this helps reduce the likelihood of an impasse.

The benefit of the mediation privilege under Chapter 44 (here in Florida) is that you can communicate freely and confidentially before mediation and flush out the parties and insurance carries that may be taking unreasonable or difficult positions. Better to know well in advance that a particular defendant is going to be a problem than to be surprised at mediation. No lawyer wants their client to say, “why didn’t we know this?” and “what are going to do about this problem?” You won’t have good answers on the day of mediation if you are surprised at 10:00am. 

If you communicate beforehand and learn that one defendant is going to be a problem, you may have time to move the needle. Maybe you can  educate the problematic defendant – maybe they don’t see their exposure. Tell plaintiff’s counsel you are not the problem but someone else is – before mediation starts – you will have made a friend. Building equity in the relationship with Plaintiff’s counsel is never a bad thing. Better they view another defendant with a jaundiced eye than you and your client. It only takes one ass to spell impasse. Make an effort to identify the problematic parties before the mediation begins.