Mediation is often an opportunity for parties to a conflict to relate to and communicate with one another to move closer to resolution. While the ultimate goal is a total resolution, the incremental goal is positional movement and interpersonal understanding. The mediator who relates well with all parties and their respective counsel betters the odds of earning trust and being heard. Even so, that the parties desire to mediate in good faith in the first place lays a groundwork for mediation success. This is an overview of instances where mediation is typically desired by the parties and why parties should mediate in good faith.
Clients should be advised to make an objectively good faith effort to partake in the process when at mediation. From a practical standpoint, the clients are present and probably paying, so they may as well give the process a good-faith go.
When the court orders mediation, the parties have to not only attend, but also mediate in good faith. Mediating in good faith also makes economic sense. A party that merely shows up but refuses to participate in the mediation may end up assessed with sanctions and costs. See for example Texas Dept. of Transp. v. Pirtle, 977 S.W.2d 657, 658 (Tex. App. — Fort Worth 1998, pet. denied). The Pirtle case stands for the proposition that parties should mediate in good faith to avoid risk owing costs– no matter who wins underlying case. Summarized here in three acts, is exemplary of what can happen when a party refuses to cooperate:
Act I) The Refusal. In Pirtle, the Defendant, Texas Department of Transportation (DOT) 1) did not object to the mediation, 2) attended the Court-ordered mediation, “but refused to participate”. Id.
Act II) The Cost. DOT happens to wins the underlying case. However, the court assesses DOT with all costs including attorney fees and mediator fees.
Act III) No Abuse of Discretion. Costs may be assessed against the ultimately successful party… “when a party does not file a written objection to a court’s order to mediate, but nevertheless refuses to mediate in good faith.” Id.
Accordingly, court-ordered mediation is not just an order to mediate, but an order to mediate in good faith.
Another reason parties may wish to mediate include that the parties seek quick resolution. Additional reasons include keeping costs of litigation low, avoiding uncertainty, and protecting the ongoing relationships between the parties. Parties who author their own mediated settlement agreement maintain some control over actions and timing for carrying out the MSA. The parties may be in business with one another or dependent on one another and protracted litigation with, for example, their supplier or contractor, may not be in the best interest of their business or relationship.
The desire for secrecy, privacy, and confidentiality is also a motivation to mediate. Some parties may seek a non-disparagement clause or assurance that the issue under discussion remains outside the purview of the public eye. The Internet is forever and what is posted can have a lasting effect on a party’s reputation and business.
It is true that some engage in mediation in the course and furtherance of litigation, and not to settle the case at all. Some are fishing for information. Even when this is the case, we should remember that people’s motivations can shift at mediation, i.e. some may go into mediation seeking information for later litigation strategy use and nonetheless settle at the mediation.
Overall there are many circumstances where mediation makes sense. If the parties are attending to listen to one another and to be heard— with the concept in mind that the conflict being resolved is a meritorious goal— these are optimal circumstances in which mediation should be pursued. Even when optimal circumstances do not present themselves, mediators should remind parties and their counsel of these benefits of mediation to foster the desire to resolve the conflict.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.