Mediation Redux

How to get back to the table if settlement wasn’t achieved in the first conversation.



Recently, someone asked me to suggest ways to reignite a mediation after the first session ended without settlement over a year ago. Of particular concern here was the fear of looking weak for suggesting more negotiations.


This is a common concern for parties. How do you propose mediation without looking like you are desperate?


As mediation philosophies go, I do not subscribe to the mediation-is-a-sign-of-weakness line of thought. Regardless of what you think of your litigation adversary, you do not know what they are thinking. Assuming that your interest in mediation will automatically signal weakness to your opponent is your assumption.


And what if they do see your request to mediate as a sign you are worried? What difference does this make in the long run? They show up to the mediation thinking they've got you and then the mediator has to bring them back down to reality. Or they say no to the mediation and you haven’t really lost anything simply by asking.


In terms of strategy, if you liked the last mediator you should call them and ask for their advice on how to get back to the table. They might even be willing to reach out to your counterparty, just as a check-in to see how things are going and if it might make sense to mediate again. This way, you don’t have to do anything in terms of outreach to opposing counsel.


If you think a new mediator is advisable, offer to work with a mediator of opposing counsel’s choice. This might provide your counterpart with more trust in the process, and it is a great way to extend an olive branch early on to get negotiations moving again.


In this scenario, a year had passed since the first mediation session. In that time, the parties participated in discovery, had more information about this case, and were in a better position to negotiate settlement. While each side remained strident in their position, the opportunity to agree on an outcome - as opposed to having one imposed on them by the court - grew more attractive.


In short, don’t let the fear of looking weak be your reason for avoiding mediation. People have many reasons for exploring mediation - whether company policy or a client’s desire to avoid protracted litigations (and fees). Keep an open mind and have a good faith conversation with the other side. More often than not, you’ll get to the mediation without worries that you somehow caved.