The case is set for mediation in two days. You call your client to prep them and come to find out that they forgot about the mediation and can’t attend. Or in preparing for mediation, you realize that there is a deposition you need to take to properly evaluate the case for settlement purposes, and you don’t think going forward with the mediation will be productive. Or your son or daughter is scheduled to graduate from kindergarten on the day set for mediation and you forgot to clear that on your calendar. What do you do?
Other mediators may have a different opinion, and I don’t know of any authority to support my opinion, but I believe that mediations cannot be unilaterally canceled. In my view, a mediator does not have the power to cancel an agreed-upon mediation date. The mediation can be canceled upon agreement of all parties, but if a party does not agree to the cancellation, the mediation must go forward absent an order from the court permitting cancellation of the mediation.
As a practical matter, I have found that most lawyers are agreeable to canceling a mediation upon request from opposing counsel if the reason for the cancellation is legitimate and the party requesting the cancellation agrees to pay the full cost of any cancellation fee. While on the topic of cancellation fees, please understand that last-minute cancellations are difficult for mediation companies. Most mediations are scheduled months in advance and if the mediation is canceled within days of the mediation, it is usually impossible to fill that time slot, resulting in lost revenue. I would estimate that more than 20% of our mediations are either canceled due to a pre-mediation settlement or rescheduled. Some are canceled far enough out to allow us to re-book the time slot, but a significant number of mediations are canceled shortly before the scheduled mediation. In those cases, the cancellation fee generally recaptures just a part of the anticipated revenue from the mediation.