For reasons that largely remain a mystery to me, I had more “last-minute” cancellations in 2023 than any previous year. By “last-minute,” I mean a request to cancel or continue a mediation within fourteen (14) days of its scheduled date, at which point the mediation fee is non-refundable unless I’m able to schedule another mediation to take its place.

This suddenly ascendant culture of “last-minute” cancellations is as unnecessary as it is unwise. Unless a medical or other last-minute emergency literally makes it impossible for an otherwise indispensible party to meaningfully participate in a scheduled mediation, there is almost always something to gain — and seldom anything to lose — by proceeding with the mediation.

Here are just two examples:

A few months ago, counsel for plaintiffs reached out to me to discuss postponing an upcoming mediation because he hadn’t been able to provide defendants with an itemized damage calculation. I counseled against doing so for a number of reasons, not the least of which was the fact that the parties would forfeit the mediation fee. Even if the parties didn’t reach a resolution, progress made during the mediation might make it easier to resolve the matter down the road, whereas canceling at the last-minute could create ill-will, making it more difficult to later reach a resolution.

We moved forward with the mediation as scheuled and, as it turned out, the parties were all motived to reach a resolution that day, despite the fact that important information had not yet been provided. During the mediation, I was able to faciliate a meaningful discussion between all counsel and a global resolution was reached that day.

Similarly, just last week I mediated a matter where counsel for one claimant was strongly inclined to postpone the mediation at the last-minute because a formal “global policy limit demand” had not yet been transmitted to the carrier on behalf of the two parties presenting claims. Despite counsel’s legitimate concerns, I was confident that moving forward with the mediation would still be of value.

Although the parties weren’t able to reach a resolution, the mediation provided a forum within which the attorneys for the two competing claimants could make their case to the carrier that the matter could not be resolved short of arbitration unless the carrier tendered the remaining policy limits, which would enable claimants to then negotiate how to apportion the available insurance proceeds. The carrier has requested additional documentation and is considering whether to tender the policy.

While I seldom see any benefit to canceling a mediation at the last-minute, I certainly see a benefit to avoiding the situation in the first place. Following these relatively simple and straightforward steps will reduce the need to ever consider a last-minute cancellation:

(1) As early as practicable, but definitely no later than 30 days before a scheduled mediation, counsel for plaintiff/claimant should transmit a reasonable opening demand to opposing counsel, together with all supporting documentation, requesting a reasonable opening offer in response, establishing a deadline for the response that will leave sufficient time to postpone the mediation without having to incur a cancellation fee;

(2) Counsel for plaintiff/claimant should then reach out to opposing counsel 15-21 days in advance of the mediation to confirm that defendant/respondent has received all of the information needed to meaningfully engage in mediation. Unless the answer is “yes,” consider rescheduling the mediation;

(3) If counsel for defendant/respondent has not received a demand package at least 30 days before a scheduled mediation, he/she should reach out to opposing counsel to discuss whether to continue the mediation. In the alternative, counsel for defendant/respondent should transmit a reasonable opening offer based on the information currently available, requesting a reasonable opening demand in response, establishing a deadline for the response that will leave sufficient time to postpone the mediation without having to incur a cancellation fee.

Finally, if circumstances truly leave you no choice but to postpone a mediation at the last-minute, consider doing what one highly regarded plaintiff’s attorney did several years ago. After conducting a focus group the weekend before the mediation, he realized the claim had greater potential value than he originally thought and he concluded it would be a mistake to proceed with the mediation. After explaining the situation to opposing counsel and apologizing profusely, he offered to reimburse not only the other side’s portion of the mediation fee but also the travel expenses and other costs incurred by opposing counsel, who had already flown in over the weekend to attend the mediation.

That’s a “cancel culture” that was not only much appreciated, but one I can wholeheartedly endorse!

As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards,

Floyd J. Siegal