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Moving from Preparation to Negotiation – How to Cause Failure in Mediation – Part 2

By: Alexander S. Polsky, Esq.

A previous post on this topic listed several actions by parties and counsel that can derail even the most straightforward mediation. This post continues that list.

Allowing someone with a separate agenda to influence the client’s decisions: Plaintiff does not speak English. Her bilingual boyfriend attends mediation, obstenibly to translate. However, he has an agenda, which includes controlling the plaintiff’s decisions. He consistently undermines the advice of the counsel and prevents direct communication between plaintiff and the mediator. The plaintiff has lost the opportunity for a meaningful discussion with the neutral. She has lost the ability to participate in the process, and her pre-conceived notions—and those of her boyfriend—remain obstacles to settlement. The only people attending mediation should be those necessary to advance the process.

Personal attacks on the opposing party or counsel:  A sure way to derail negotiations is to begin by insulting the other side in pre-mediation letters, call or briefs.  Gratuitously insensitive remarks in mediation serve only to inflame emotions.  Criticisms may be entirely valid and should be aired, but the manner in which they are raised as well as the person raising them is important.  Sometimes the mediator best delivers an unwelcome message.

Opening the negotiation with ridiculous demands and offers: A ridiculously high demand invites an equally ridiculous offer.  A reasonable demand met by a low-ball offer discourages a counter demand. Participants justify these positions by their desire to communicate resolve. There are other, more effective, means of sending that message.  The amount of movement in the offer or demand as the mediation unfolds communicates the degree to which a party is committed to a position without derailing the mediation at the outset.  A ridiculous offer or demand requires a huge early jump that generally diminishes credibility.  Every case has a range; start within it and you are more likely to settle.

Refusing to disclose information that is driving settlement decisions: Early in the life of a case before discovery is complete, one side has key information which it does not want disclosed.  Yet it is making decisions based on the secret sauce.  Trying to convince the other side, the mediator can only say, “They have evidence that I think will be a real problem for you, but I can’t tell you what it is.”   Attorneys cannot negotiate with a phantom.

Introducing new terms late in the negotiation – lead with the deal points: In a highly emotional wrongful termination suit, counsel and the mediator have worked hard to keep the emotions under control.  The parties are finally getting close to settlement.  Suddenly the defendant adds two terms: confidentiality and return of some equipment the plaintiff possesses.  The plaintiff announces he is leaving.

The mediator has spent hours building trust in the process to overcome the plaintiff’s instinctive distrust of the other side.  By introducing new terms, however minor, the defendant has derailed the process.  If non-monetary terms are important, get them on the table early in the process.

For more on Mr. Polsky's discussion on Moving from Preparation to Negotiation please read the full article from


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Alexander S. Polsky, FCIArb





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