Your Mediation Didn't Resolve. What's Next?

As a mediator, I enter every mediation believing that by the end of the session, I will have helped the parties come together and reach a settlement. An optimist by nature – I'm a lifelong New York Jets and New York Knicks fan, after all – for every season and every mediation, hope springs eternal.

What can be done when a mediation doesn't settle

While most mediations result in a settlement, some do not. However, even if the case does not initially settle at the mediation, I do not lose hope. Rather, a settlement is not only still possible, but more than likely to result in a positive outcome, assuming all sides look at their case realistically and want to continue to work towards a resolution. In fact, a mediation session that is initially unsuccessful is an excellent starting point for a second mediation with both sides now being more realistic in their positions. It gives each side the opportunity to step back, take a deep breath, and reevaluate their respective positions with the assistance of the mediator.

The initial mediation session has probably given counsel a preview about how their adversary views the case and the strategy that will be used at trial. Getting the mediator's point of view can be invaluable and, if used properly, can assist in eventually bringing parties together. Additionally, the mediator's opinion of the case can be used by defense counsel to justify obtaining additional authority from the carrier. The plaintiff's attorney can go back to the client with the mediator's opinion of the value of the case to lower a client's expectations and give the client a different perspective. As this can be of great value and move the negotiations forward, my previous experience indicates that there is a benefit to having the neutral speak directly to the plaintiff or the carrier's representative after the mediation has ended.

The initial mediation: evaluating strengths and weaknesses

When a mediation is initially scheduled, both sides will prioritize the case and begin to focus on the relevant issues. Oftentimes, there is a lot of preparation by the parties leading up to the mediation, with each side evaluating the strengths and weaknesses of their respective positions. Plaintiff's attorney should be discussing the case with their client, explaining the process, and gauging the client's expectations.

Personal injury case

In a personal injury case, the plaintiff's lawyer must know a myriad of information, including:

• What the client's current medical condition is, including if the client still being treated and what are the current complaints?
• Lien information must be obtained from the medical providers which includes the Workers Compensation carrier, Medicare, or Medicaid, if applicable.

This takes time and effort but is necessary for a successful outcome.

Similarly, defense counsel is also completing their due diligence by:

• Evaluating the case;
• Reviewing its strengths and weaknesses; and
• Preparing a report for the claims examiner to review with the attorney's opinion about the value of the case.

Hopefully, the claims examiner and the attorney will discuss the defendant's position and the authority that the carrier wants to put on the case before the date of the mediation.

The second mediation: what you need to know

When the mediation does not result in a settlement, all the effort described above does not go to waste. It can prove to not be an ending, but rather a new starting point, with an opportunity to use the information gathered at the mediation to attempt to continue the negotiations.

There are a few key takeaways to keep in mind after an initial unresolved mediation.

1. The neutral evaluates
   From a neutral's perspective, shortly after the initial unresolved mediation, I review my notes and evaluate both party's positions to determine the best way to proceed.
2. Continuing the dialogue between the parties
   Where there were extensive and productive negotiations during the initial mediation session but, for whatever reason, we were not able to close the deal, I might suggest setting up a future session to continue negotiating.
3. Keeping in touch
   Maintaining contact with all the decision makers is paramount. In fact, I provide my email and cell phone number to all parties in an attempt to keep the lines of communication open and encourage continued dialogue.
4. Give space and time for perspective
   Oftentimes, a mediation can get emotional. If that's the case, the best thing is to have everyone step back and cool down for a week and then contact counsel to try to restart the negotiations.

Issues do arise, but a resolution can still be achieved

Often, there is a specific issue that may have caused the negotiations to be temporarily halted or broken down.

• Liens sometimes require investigation and counsel needs to negotiate the amount to be paid back to the lien holders. Ideally, this should have been done prior to the mediation, but this is sometimes not the case.
• On the defense side, there may be new information exchanged at the mediation which requires the attorney to verify and try to obtain additional authority. There might even be multiple representatives at the insurance carrier who need to be contacted in order to get approval on certain matters so that the case can move forward.
• The case may need to be round-tabled again. With large bureaucracies being what they are, this can take some time. This can even include working with one party to shine a light on a specific issue that might need to be thought of from a different perspective.

The important thing for me is to keep pushing the parties to do what is necessary to close the gap that existed at the end of the initial mediation session.

What other mediators need to know

In my years as a mediator, I have settled many cases which for whatever reason, did not settle at the initial session. Sometimes it took a second or third session. There were times I was able to bring parties together to reach a resolution through post-mediation of phone calls, texts, and emails, as well as a second session. Therefore, follow-up becomes critical.

My advice is if at first your case does not initially settle, be patient, keep working on it, reach out to your mediator for their input, and chances are you will get to the finish line with a positive outcome.

About the author

Hon. Larry S. Schachner (Ret.) is a retired Justice of the Supreme Court, Bronx County where he served on the bench for nearly 20 years and oversaw a myriad of civil litigation including negligence, medical malpractice, contracts, commercial landlord-tenant disputes, consumer credit transactions and small claims matters. He has also acted as a Special Master to supervise discovery and rule on discovery issues in complex litigation cases. Judge Schachner has developed an impeccable reputation for his judicial temperament, integrity and superior settlement skills. He was voted a Top Ten Neutral in recent New York Law Journal Best Of Surveys and he has been rated “Highly Qualified” by the New York State Independent Judicial Election Qualification Commission. He is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel. and is available to arbitrate and mediate cases throughout the United States.