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WHY MEDIATION MAY NOT WORK

--A top ten list.

10. The Parties spent the hours before the session watching Roller Derby or Judge Wapner on The People's Court. (The parties do not understand the process and have not been educated about the process.)

9. The Parties have an aversion to old magazines and the 1989 swim suit edition of Sports Illustrated in the conference room. (The parties do not realize that time and effort on their part are necessary to a mediation and fail to plan for the session accordingly.)

8. Mediator serves special green chili enchilada casserole for lunch. Attorneys insist on three martini "conference" at lunch. (The parties and the attorneys need to plan putting the mediation first. A break in attention outside of the mediation risks losing momentum and focus in the progress of the discussions.)

7. Dumb lawyers. (Mediation is no substitute for a lawyer planning and analyzing the law and the case. Mediation helps a lawyer advocate a position -- it does not replace the need for advocacy.)

6. Smart lawyers. (Mediation presentations should not be overdone. Too smart can be as bad as too dumb..)

5. Lack of bathrooms and smoking areas. (Speaks for itself. A mediation should reduce stress and allow for special needs. A party should not need to break off a mediation just to get relief from non-legal needs.)

4. One party believes that settlement means that he won't get his deposit back from the hired mob killer that has a contract on the other party. (Lack of good faith by one or more parties.)

3. Parties are disappointed when mediator shows up instead of a fairy godmother. (Unrealistic expectations.)

2. Persons in attendance have permission to settle case only if the other party is burned at the stake after being drawn and quartered (Lack of authority.)

1. Counsel states in opening remarks (and believes) that his client's case will do to the other party what the dinosaur did to the lawyer in Jurassic Park. (Overly contentious party or advocate and/or a failure to recognize or to consider the shortcomings of the case.)

With Jay Cantrell.

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Copyright 2000 Stephen R. Marsh

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