"The Settlement Drift"

A recent article on the Kluwer Mediation Blog caught my eye.

Initially a product of the desire for more efficient and cost effective settlements, the mediation session was seen as the final play in the drama. The moment the curtain would close and the audience would applaud. The mediation session represented the end of the show and a chance to step back and look away from the play. All of the preparation that went into the production was effectively utilized to present the play, and the actors were on their best behavior. If the case had a chance to settle, it would. There were no excuses for parties not being prepared, authority levels not available, or decision makers hiding behind layers of bureaucracy. Cases resolved because the process was designed for closure.

Now, almost 25 years later, the mediation session has transformed itself into one additional step in the litigation menu.

California mediator Jeffrey Krivis argues that, too often, mediation has become a box to be checked in the litigation process, rather than an opportunity for attorneys to discuss the substantive merits of the case. Mediators are reduced to conducting shuttle diplomacy between hostile adversaries, while attorneys avoid direct dialogue and sometimes even use mediation as a discovery tool, with the expectation that the case can still be settled anytime before trial.

Read the full article "The Settlement Drift" on the Kluwer Mediation Blog website.