As innovation has transformed the world and the legal industry, little has changed in the way most mediations are conducted. As professionals, we always need to consider how improvements in technology and processes can help us win better outcomes for our stakeholders. If you can relate to the following account, you owe it to your clients and to yourself to consider your alternatives to traditional mediation.
I recently had the experience of flying 1,400 miles over the course of three days to attend a mediation. Twenty other people did the same thing. During one of my many hours of down time that week (more on that later), I estimated the cost to both parties associated just with billable time to be over $75,000.
It was a colossal waste for everyone.
I was an observer in the plaintiff's room. The mediator did not show up for over two hours. The plaintiff negotiators were present and ready to engage from 8:45 am until 5:15 p.m., but we saw the mediator for less than an hour. The rest of the time was spent on small talk, or answering email.
The injured clients never got a chance to tell their side of the story. The mediator was not in the least interested in discussing the merits of the case. One of our lawyers insisted on telling him the key liability arguments, but the mediator never asked a single question about the plaintiff's approach to damages.
In order to maintain a level of confidentiality I will not go into specifics, however it was very clear that the entire procedure was designed to ensure that we would NOT mix it up with the other side. The parties were kept apart from one another, in their own safe little rooms. So the plaintiff attorneys never got a chance to size up the other side, or to make their points to the claim handlers. And we never got to hear how the other side was evaluating the dispute, either on liability or damages.
The other decision makers were right down the hallway. We had all the experts and authorities in the case right there. We could have learned so much. But all this proximity was worthless. No. Talking. Allowed.
The main defendant had promised our side that they would start the negotiations at $10 million. By 4:00 p.m. they had moved from $2.5 million to $3 million. Around 5:00 the mediator suggested it might be helpful for our side to bid against ourselves, moving from $23 million to $17 million. Our negotiators agreed, in a last ditch effort to save the mediation. Plaintiffs trusted the mediator, and bid against themselves. In return for this major move to resolve, the main defendant took our $6 million concession - and left the building!
More than twenty people returned to their various home bases with nothing to show for the time and cost we all invested. I can't imagine anyone was happy with the result.
This was, by far, the worst mediation experience in my 30 years of lawyering. I will never go to such a traditional mediation again. There is a better way, and this is why I built 1 Hour Mediation.
Feedback from our clients who have efficiently settled their cases in 1 Hour Mediation put the contrast in stark relief:
“...removed much of the bluster and posturing to get both sides down to the issue of resolving the case.” - South Carolina personal injury attorney
“...speed and ease of setting the mediation date for date not so far out on the calendar. Saved us many many hours; certainly got the case settled at least 1-2 months quicker…” - Claim professional at multinational carrier
“...It forced both sides to get numbers on the table quickly…” - Indiana trucking attorney
“...Time savings - we are able to get a lot of activity in negotiations in a short amount of time..” - Complex claims adjuster
“Frankly, this process was similar to the way we used to settle cases before the mediation industry developed. I like it.” - Maryland attorney
“...The time limit. It makes both sides get real and to your number quickly…” - Complex claims adjuster
If you have had poor experiences with traditional mediation and are interested in learning about a proven alternative, let’s talk!