The top reasons mediations fall apart — and how to avoid them
By Tequia Burt
Chicago Lawyer correspondent
Imagine it’s mediation day. You’ve been preparing for weeks — or even months. You and one of your clients are on the same page and are working toward one goal: to settle the case.
As you sit in the mediation room and the minutes tick by, though, you begin to realize that one of the key decision-makers on the other side is not going to show up.
According to seasoned mediator Faustin “Frosty” Pipal of Chicago-based Resolute Systems, “that’s the No. 1 mediation killer, in my view.”
Pipal, who primarily oversees personal-injury, product-liability and professional negligence mediations, said that whether it’s an irate brother-in-law, a key insurance adjuster or a disgruntled business partner, the fact that the other side is not there can be a big obstacle to reaching an agreement that all parties are able to live with.
“Though not many of my cases fail, almost 100 percent of those that do, do so because one or the other decision-maker is not physically present at the mediation,” Pipal said. “It’s so important to have all persons involved in the process be in the room, where they can be a part of the give and take of the negotiation.”
“‘Being there’ is the very essence of a mediation and if someone is phoning it in, in my experience, it’s going to be harder to get the case settled,” he added.
And Pipal means that — literally. He recommended against having mediations via telephone or even online. Pipal said bluntly of online cases: “If we move toward online meetings, we’re going to have increased failure rates of mediations.”
Originally published in September 2018 in Chicago Lawyer