Tips for Attorneys: How to walk out of a mediation

Photo:  Paul Stritmatter.  Showing off his cool socks.  Right before we walked out of a mediation earlier in the month.

Photo:  Paul Stritmatter.  Showing off his cool socks.  Right before we walked out of a mediation earlier in the month.

Patience is not always a virtue.

I have walked, trounced, and even skipped out of mediations before they've officially ended.  In fact, that used to be the norm for me.

About 15 years ago I was in the car, driving back over the bridge when the phone rang.

Larry Levy:  Where are you.

K3:  In the car.

L2: (Incredulous) - you left?!

K3:  Yep.

L2:  What happened.

K3:  You asked me what my goal was (during the last round that I stayed for).  And I told you - to beat rush hour.

L2:  You weren't serious.

K3:  Apparently I was.

L2:  The defense has increased their offer to X.  They want a counter.  Will you come back.

K3:  My goal is to beat rush hour and so I'm not coming back.  I'll think about a response and call you.

The negotiations continued for a bit and ultimately mediation failed.  I tried the case to verdict well above the last offer.

Over the years, my tendency to want to leave unfruitful mediations has not abated.  Mediators hate this.  They want you there.  They want the process to continue.  They want to settle the case and add to their reputation of being effective.

But sometimes, the best thing a plaintiff lawyer can do in a mediation - is walk right on out of there.  For example, sometimes the defense is not there to settle the case, but simply to yank your chain.  Other times, the defense lawyer would like to settle the case, but the insurance company doesn't want to acknowledge the full loss.  Either way - your injured client is disrespected.  There's no need to prolong the agony.

Here is how to walk out of a mediation after you've determined that it is a total waste of time:

  • Make the decision with your client whether or not to leave when the mediator is not in the room
  • Explain to your client, that mediation is not going to be fruitful that day, and they are free to leave.
  • Let them pack up and leave first.
  • Pack up your things.
  • Stay in the room until the mediator returns
  • Be respectful to the mediator and explain that you are open to further discussions when the defense decides to get real
  • If there are no interior windows in the mediation facility, feel free to run out of there.
  • If there are interior windows, put on fresh lipstick, shake your hair out, and sashay out of there, waving at the defense side as you leave.