Mediation Wildcards

Whenever the Big Game comes around, I’m always reminded of the legendary 49ers football coach Bill Walsh, and his strategy for winning, “If you want to sleep at night before the game, have your first 25 plays established in your own mind the night before that. You can walk into the stadium and you can start the game without that stress factor.”

Not surprisingly, many legal professionals and their clients are well prepared for mediation—which is laudable—but, suddenly, they are dealt a Mediation Wildcard: an unexpected, significant piece of information that is revealed by the other side—forcing one to reassess their perception of an opponent’s interest in, or their ability to start, or continue, a legal proceeding.

While you may have planned well in advance, and through no fault of your own, you suddenly need to reassess your bargaining power. “Mediation Wildcards” require us to change our original game plans and rely on our improvisational skills.

Here are some real-life examples of some mediation wildcards:

• The other side is not paying their lawyer, or they are paying them market rates as they may be a friend or family member.
• An unnamed party (or lawyer) is controlling the litigation.
• Your opponent has legal expenses, costs, liability, or another form of insurance.
• The other side serves a new expert report, or some other critical piece of evidence, late in the game.
• You assumed the other side’s seemingly strong position on a key issue was bravado or posturing, but you now learn that they really mean it.
• The other side’s interests are not what you thought they were. You assumed that they only cared about money, but in fact, they care about principle, or addressing their hurt feelings.
• One side threatens to walk out. In other words, they are picking up their ball and leaving.

Like in sports—and life—anything can happen. So have a game plan going into your mediation. But know that you may need to change your plays.

Want to build your resilience and improve your mediation game? My advice is not to have knee-jerk, negative reaction to mediation wildcards. Instead, calmly adjust your and your client’s expectations, and make the best use of the mediation by not catastrophizing.

In other words, the game may be delayed, but it is far from over.

Ask yourself: “Is there something useful that can still be accomplished today?”

Often there is, especially with a mediator’s help. In fact, if you and your client remain calm and open-minded, and the mediator is creative and tenacious, you may score a field goal. Better yet, a touchdown.