A problem also exists because many people feel unhappy at the end of a litigated case that results in settlement. The fair part is that both sides feel equally unhappy. That shouldn't be a basis for a lawsuit. Plus how would mediation confidentiality fare in this?

I have in the mediation agreement that the parties do "not" have to settle and that the mediator is not forcing the issue.

Thanks for dropping by to comment. I'm not certain there's much of a difference between coercion and intimidation. These cases would indeed be difficult to "win." As no one knows better than mediators, however, few people ever actually "win" a lawsuit. The damage is sustained when suit is filed or the Court refuses first to grant the demurrer and then the summary judgment motion.

When I write about mediator and mediation advocacy malpractice, my intent is as much to suggest that we establish standards of practice (and hence increase the professionalism of the profession) that we'd all agree mediators adhere to.

I DO ENDEAVOR to help the parties go away from a mediated settlement feeling as if some degree of "rough justice" has been achieved. They may be unhappy with the settlement, but they shouldn't go away feeling as if their will has been overridden by their own attorney or the mediator.

It's interesting that you've included this self-protective mechanism in your mediation agreement. It suggests that you might agree with me that the mediator shouldn't "force the issue" and that his doing so might be below the standard of care in mediation practice. Yes?

Thanks for extending the conversation. As a fellow blogger, you know how great it is when someone takes the trouble to comment and I do appreciate your efforts as well as the outstanding quality of your blog posts, which I recommend to all my readers.

Best,

Vickie

But settlement negotiations can change perceptions of facts rapidly, in ways clients may not have anticipated. If they're still having trouble with the question "how will this feel at Christmas", why not suspend the mediation for a time, so the client has time to let the dust settle emotionally before making such a big decision? I speculate that a lot of "buyer's remorse" could be avoided if the pace were slowed down just a bit to give the client's emotions time to catch up with the reality of the situation?

Steve, I agree these issues are difficult in an evidentiary sense, as well as your written consent does reinforce the idea that settlement is 100% voluntary, but is that really the issue? I think we want our clients to be happy with the process, without regard to what is on paper ahead of time. In some sense, the client is likely to be unhappy no matter what happens if they don't get exactly what they want (e.g. turn down settlement and then lose, or accept settlement and think they could have done better), but I think part of the challenge is to make sure the process does remain completely within the party's volition and not our own, as a matter of fact and not merely what we talk about.