Two recent mediations vie for entry into the pantheon of failed mediations.  They both suffered from the similar flaws in which one or more parties appeared with no authority to contribute to a joint financial settlement.  Both cases were set up as cost sharing negotiations and were briefed as such . . . or maybe they weren’t . . .

Some background:  The first mediation was intended to reach a negotiated allocation among five parties of the cost of remediating groundwater PCE contamination.  All parties attended with clients and insurance carrier representatives.  In advance of the mediation three parties presented proposed allocations of the cleanup costs to start the negotiations.  One of the two remaining parties had consistently argued that it had no responsibility for the commingled plume and on that basis neither provided an allocation nor offered anything more than a “nuisance” payment at the mediation.  This was not surprising. The fifth party’s written submission also did not comment on allocation or indicate a willingness to participate financially in the settlement.  This raised concerns pre-mediation.

The second case was one in a series of drinking water contamination cases allegedly caused by chemical components in agricultural fertilizer products that were applied in many farming communities over a long period of time.  That mediation involved three parties and, similarly, was intended to collectively fund a water treatment system to provide clean drinking water from municipal wells.  By all accounts, one of the parties had aggressively pushed for an early mediation and giving this case priority treatment in the trial/mediation queue established by the presiding judge.  However, the party that had initiated the mediation unexpectedly came with very limited and only “recommended” settlement authority that was woefully insufficient in light of the facts, seemingly out of step with its actions in championing an early mediation.

Following usual protocol, I received mediation statements from the parties in each of these cases a few days before their scheduled mediation dates; and in both cases my “radar” indicated trouble ahead.  I called as many of the parties as I could reach to discuss my concerns.  Some held their intentions close to their vests, while others didn’t know what their adversaries intended to do. [Read more…]