In Richard v. Spradlin, 2013 WL 1571059 (E.D.Ky. 2013), the mediation failed, and the court knew just who to blame. The defendant was sanctioned for multiple acts of bad faith. First, upon arrival, the defendant’s representative insisted the he needed several hours to consult with his counsel before he could participate in the mediation, which the court not surprisingly found showed a lack of proper preparation. Next, when the defendant’s representative was ready to participate in the mediation, he asked to talk directly with the plaintiff, which the court found was an attempt to subvert the established structure of the mediation. Maybe most egregious of all, the defendant had circulated a draft of a new lawsuit against the plaintiff shortly before the mediation, and then filed it the day after the mediation session, even though the mediator had not yet formally terminated the mediation. Finally, the court noted that defendant’s representative made multiple calls during the mediation to those higher up in his company, showing that the defendant did not send someone with the proper settlement authority.
It is not hard to see why sanctions were entered, as the facts show a veritable top ten list of bad mediation behavior. It is important to note, however, that this was a court ordered mediation, which gave the court the power to sanction the bad faith conduct. If the mediation was the result of a private agreement between the parties, it might be more difficult to impose sanctions. If the parties had voluntarily agree to mediate, however, it is unlikely anyone would act as the defendant did here! Indeed, this case, in addition to showing that bad faith conduct in a mediation can be sanctioned, is also a testament to the fact that forcing parties to mediate when they don’t want to is not always a productive idea.