WHAT IS ONE MEDIATOR PET PEEVE?
Of course, this is a trick question. Good mediators do not have any pet peeves. They do not get rattled or surprised by anything that happens in a mediation. They’ve seen it all or know someone who has. So, why did I ask this question? Well, I want to make one point, and that is that, prior to mediation, the counsel for the parties should make sure that all facts that are essential to settlement have been investigated and as much as possible has been learned. What do I mean? Let’s say the conflict is over a contract for those ubiquitous, but never actually seen, widgets. Prior to mediation, counsel for the parties should have, at least for their side, a good idea of what a widget costs. Without that basic (to the case) knowledge there is really no way to settle for an appropriate amount. One cannot competently haggle over an unknown. What would happen in my widget example is that the side lacking the information would start trying to calculate the value or cost of a widget in the middle of the mediation. That may be an impossible task to accomplish within an hour or so. The failure to have this information prior to mediation will cause a failure to settle when settlement was all but certain with that information. Bottom line? If you really want to give mediation the best chance of settlement, make sure all the necessary knowns are known prior to the mediation.
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