The American [sic] Bar Association’s Annual Meeting will be held this coming week in Toronto [sic] and promises the usual array of gifted and unique presenters, as well as mucho networking and conviviality. Blue Jays are unfortunately on the road, but you can’t have everything, eh?
If nothing is ever as simple as it looks, then the seemingly simple rules of mediation confidentiality are particularly complex. A group of colleagues was discussing the following hypothetical and could reach no clear conclusion:
A mediation session concludes with defendant’s counsel agreeing to revert to his (governmental) client to determine if an offer could be made along certain suggested lines. A week later, counsel phones the mediator and directs that the offer can, in fact, be conveyed. But the mediator can’t get the plaintiff’s counsel to call her back. After many attempts, the mediator faxes a letter to plaintiff’s counsel, generally outlining the offer. But she hears nothing.
Some months later, the mediator learns from the plaintiff that his claim was dismissed at summary judgment and, by the way, why did the defendants never get back about that final proposal? The mediator says that they did make the proposal. The plaintiff becomes upset and says that his (former) lawyers apparently never conveyed it to him. Plaintiff asks what the terms of the offer were.
There has been an uncharacteristic spate of impasses lately in my practice. Sitting back and examining why, the conclusion might be that one or more of the parties didn’t come to the mediation to move ahead to the next stage in their business. They came to it to re-affirm the past, to find a way back to the “good old days” when they didn’t have this problem. And problem-solving processes aren’t the best tools for vindicating past behavior.
