I. Wrong Direction:
If you want a mediation not to succeed, simply move the wrong way with your demands and offers. Once a Plaintiff heads North or a Defendant heads South, you can rest assured that the mediation probably will not be successful.

II. Authority:
I have always said that the "check writers" and "check endorsers" should be at a mediation, or somebody with full authority on their behalf. Sometimes lawyers call or write me and ask if their client or insurance representative can "be available by phone." What that really means is that the client or claims representative is not going to experience the mediation process and probably the case will not settle. The mediation process has a purpose. That purpose is lost if the people are not present.

III. New Information:
I have been in mediations where one side or another pops up an expert report, new medical bills, or other new information at the time of the mediation. The new information cannot be evaluated during the short time of a mediation and thus, the mediation is unsuccessful. If there is documentation or evidence which will have a significant bearing on the outcome of a lawsuit, it needs to be provided well ahead of the mediation so that all sides can evaluate it properly and be prepared to consider the information towards the value of the case.

IV. Lack of Information:
I am always disappointed when I conduct a mediation and the parties or representatives at the mediation do not have pertinent and crucial information available to consider. Elementary considerations such as prognosis, total medical bills, total lost wages, court costs, future cost considerations, and litigation expenses are a few examples of information needed at a typical mediation which I conduct. The bottom line is to be prepared with your relevant information when you come to a mediation.

V. Disputed Unresolved Discovery:
Whenever there is a key witness who has not been deposed, or key documentation which has not been obtained, I inevitably see the parties or attorneys on opposite sides giving me radically different interpretations of that evidence. It is many times a fatal hindrance to the successful resolution of a dispute during mediation. Go ahead and spend the time and money developing key evidence before you spend the time and money to mediate.