SUMMER 2020 TODAY’S GENER AL COUNSEL
Ten Mistakes Law yers Make in Mediation By David K. Taylor
This article is a listing of the most horrible, “bang your head against the door” mistakes lawyers, both in-house and outside counsel, make before, during and after mediation.
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NOT NAILING DOWN THE DEAL AT THE MEDIATION You get a deal done after an exhausting day when your client is still upset. The mediator announces the deal. I have had parties pack up and walk out with this comment: “We will take a shot at a draft settlement agreement and send it to the other side this week.” No! Now, not later! Especially in emotionally charged mediations where both sides are very unhappy, clients can change their minds. Second guessing can occur. The failure to write down even the basic terms can also increase the likelihood of later disputes, good faith or not, about key clauses (e.g., indemnification, scope of the release, who is released, confidentiality, non-disparagement). Take the time and start working on a fully executed settlement agreement while everyone is still at the mediation. If that is not possible, at least draft a limited term sheet that lays out the basic parameters of the deal and is conditioned on counsel working together to get to a more formal settlement agreement.
A long day of mediation can be scuttled with last minute issues that should have been identified early in the day.
DON’T MAKE A FAILED MEDIATION A FAILURE Not all disputes get to a global settlement. However, if your mediation “fails,” don’t throw your documents into your briefcase and complain that the other side did not act in good faith. Evaluate carefully what you learned. You have just spent an entire day reviewing and discussing the pros and cons of your case and the positions of the other side. Are there are any nonglobal agreements that can be reached that will lead to a better chance at a later settlement and/or save legal fees? Can there be discovery, formal or informal, on the key issues? What about partial settlement of some of the disputed issues? Think before you walk out the door.
