Not every mediation ends with a settlement at the close of the formal mediation session. But sometimes there is enough progress made to reach “substantial completion”: A lot of ground has been covered, the issues have been narrowed and the parties’ positions have moved closer. But they are not close enough to reach a final resolution. 

At this point, there are steps that can be taken—after the parties adjourn—to get the case settled. 

Recognize that a mediation is not a failure if there is no immediate settlement.

There is value to mediation without a settlement. The parties have had a chance to present their positions, share documents and hear from the other side. Sometimes, this is the first time the parties have gotten into the weeds of the claims and defenses. Construction cases can be dense. Having a truly meaningful exchange of views requires a real investment in time. The information shared at mediation can sharpen claims and defenses and shine a light on weaknesses.

One valuable takeaway for counsel is to let clients see just how taxing litigation can be. While a client may be eager to join the fight at the start of a legal dispute, spending a grueling day or more at mediation and jousting over the strengths and weaknesses of the dispute can have a sobering effect on a party’s enthusiasm to fight. 

But parties should recognize that even when the case does not settle, they may have gotten close enough in the negotiations to create an atmosphere of inevitability. In other words, while not completely finished, you have reached substantial completion.

So, now what?

Take advantage of the progress made and stay engaged.

After the mediation session adjourns with no settlement in hand, it can be tempting for a busy practitioner to put this file away and scurry off to the next case.

But do not squander the progress made—stay in touch with the mediator. Typically, a mediator will reach out to counsel and try to keep the momentum going. Use this to your advantage by working with your mediator to renew negotiations.

Use additional tools for keeping the parties engaged.

The mediator can continue to be a value-add to your case, as the mediator can engage in ongoing shuttle diplomacy via calls and emails or, if appropriate, convening for another session. Sometimes either or both counsel are faced with intransigent clients who have parted company taking a hard line or abandoned settlement negotiations prematurely. It is also possible that a well-timed mediator’s proposal can help the parties get past their positions and save a bit of face. Talk to your mediator to see if you should take advantage of this powerful settlement tool.

After adjournment of a mediation in which roadblocks to meaningful negotiations have been identified, the parties can agree to come back to the table following an inflection point; e.g., a court ruling on a summary judgment or other threshold legal issue. Sometimes a driver of settlement numbers can be question of whether an entire category of damages should be in play; e.g., delay damages. Once that tranche of damages is judicially determined either in or out, the parties will have a clearer-eyed view of the settlement value of the case.

Consider exchanging expert reports or some limited discovery to inform the parties on a particular issue that has been a stumbling block during negotiations. 

Use the mediator to assist with your client.

If your client needs additional clarification, discussion, or interaction, the mediator can convene a confidential call with you and your client. The construction industry is populated by some very strong-willed people who have staked out a place in this world by standing firm. These are not people who like to cede ground, even when the facts or law indicate that may be the right thing to do. Some direct, candid discussions between the mediator and a client can address these issues and help close the gap between the parties’ positions.

Confer confidentially with the mediator.

There comes a time when the attorneys need to move past the arguing and positioning. Counsel can have a confidential discussion with the mediator to give them some idea of where they think their client might be willing to go in offering or accepting damage numbers. This can help the mediator suggest the best path forward. 

Consider other processes.

Even though the mediation may not have been successful, consider the med-arb process or other hybrid systems, such as having the mediator review summary evidentiary submissions and then issue an advisory ruling on sticky issues that are roadblocks to settlement.

Or perhaps the mediator can help create a safe space for the experts to confer, have a candid discussion and craft a joint report to at least narrow the issues in dispute. 

Keep your eyes on the prize.

You brought your client to mediation for a reason: to settle the case. Just because the case did not settle at that time does not mean that your goal has changed. Keep working with the mediator, with the full knowledge that most cases do eventually settle. Stay optimistic and determined. You have gotten to substantial completion and, working with the mediator, the case can get settled!

 

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.