Notes to My Cousin Vinny: How to Sabotage a Mediation
1. Don't bother delivering a Statement of Issues or a Mediation Brief in advance. However, if you feel you must send something in advance, do not be selective about what you include. At around lunchtime on the day before the mediation bombard the mediator and the other side with a lever-arch-file of documents that they haven’t yet seen before. Let them figure out for themselves what’s important.
2. Send a (preferably very junior) lawyer to attend, who knows little or nothing about the case and has no prior relationship with the client. That way the client won’t be able to look to get any guidance.
3. When you arrive at the mediation inform the mediator of the pre-conditions of your participation, such as refusing to engage in any joint sessions. Also inform the mediator that they have precisely one hour to settle the case or else you are walking! For dramatic effect, tell the mediator that you have ‘hard to get’ theatre tickets, so he or she had better hurry up.
4. Do not invite your client to attend. If the other side gets upset about that then simply tell them your client will be available by phone, or you have already obtained settlement instructions.
5. If there is a joint session then kick up a fuss about important matters like who sits where, the fact there may be more than one lawyer on the other side, or that the opposing party’s spouse wishes to sit in.
6. If your client does attend with you, do not let the client say a word. Certainly, do not permit the mediator to address the client directly during caucus. After all, this is your case!
7. When it is your turn to speak during the joint session, thump the table and make vicious ad hominem attacks on the opposing party. Point out all your opposite number’s procedural gaffes to date in order to embarrass him in front of his client. Bring up new claims and/or add defences not yet put to the other side – but refuse to offer any supporting evidence or data.
8. During the other side’s opening statement roll your eyes, sigh, interrupt frequently, and pretend to be sending emails on your phone.
9. If your case is relying on case law to support your position, don’t bother to include copies of the cases in your brief, or even bring copies along to the mediation. On no account gain an understanding of your supporting case(s) in advance.
10. Threaten to bring up what’s been mentioned in the mediation at the impending trial and, if not before, with friends you have in the Press.
11. If the other party makes an offer laugh hysterically for several minutes (making sure that you are within earshot). And then reject it out of hand, without discussing it with your client. You had instructions after all!
12. Make sure you have no idea what your costs to date are.
13. When you think you have heard enough from opposing counsel or the mediator, stand up and theatrically start packing up your belongings. However, if the other side tries this tactic first, react by packing your belongings at an even quicker pace. The first one to walk out wins.
14. Leave without saying “goodbye” and slam the door behind you.