Preparing the Client

A lot of attorneys have difficulty preparing their clients for mediation in some respects. This is not meant to be a critical statement, I believe this pattern is a byproduct of dealing with a variety of unnatural settings in one’s professional life. Because of this, attorneys often better understand the dynamic change between litigation and mediation than their clients. It is important to explain to the client how the process differs from everything else you have told them about litigation, particularly, how confidentiality applies to the information and speech exchanged during mediation that doesn’t apply elsewhere.

Perhaps the most difficult part is preparing the client for the possibility that they might not get what they want or are hoping for, whether it comes in the form of a settlement agreement or a judgment. Every case has its issues and it’s almost never a “slam dunk.” Surely, you’ve never really been burned if you think the tables can’t ever turn on you. Remember, there are many ways for things to fall apart - even when facts and law seem to be on your side. Parties can file bankruptcy without warning, leaving you to find out that your client is nearly last in a long line of creditors; judges can make bad decisions that you’ll never be able to overturn; loss of evidence or a witness; your client somehow forgets to mention something that very negatively impacts their case; you name it! Helping the client understand that attempting to set aside some of the differences they have with the other party could provide a better and easier solution, given some of the above risks associated with continued litigation.

Preparing Yourself

While I’m a huge advocate of mediating disputes, even pretty early on - there still needs to be some modicum of facts to operate on. A shocking amount of attorneys make it through demand letters alleging specific facts and damages, file litigation and later arrive at mediation not having a clue what the damages actually are – or could be in the case of evolving injuries/investigation.

Prior to entering mediation, get your hands on whatever documentation you can. Make sure to ask your client thorough questions about the types of existing documentation that help their case, and any facts or evidence out there that could hurt it. You must also remember to ask for specifics and examples, as clients are often afraid of exposing weakness or wrongdoing (even to you). Most commonly, clients don’t even know that a particular weakness is a weakness. In cases where witness statements are important, try to identify these witnesses – both friendly and hostile – to get an idea of the types of help or exposure they might present. This again, may require some difficult conversations with your client, but will be vital in helping you both get a better grasp on the facts and help you shape your client’s expectations about what a case might be worth.

Of course, there are situations where parties cannot agree about one or several facts that will ultimately determine the settlement value parameters for each side. This is when the mediator is your friend! For situations where the parties more or less agree to the facts, but dispute certain values, that is usually the only barrier to settlement at that point. Once there is a plan for evaluation, the case typically resolves very quickly, often without the need for an attorney’s help. The mediator can help the parties come up with ideas to address concerns about the process of valuing certain damages and create a memorandum of understanding to lay a better groundwork for settlement negotiations moving forward between the parties.

During Mediation

One of the most important benefits of mediation is the chance for your client to get out of their current situation without the added expense and frustration of further litigation. Time arguing with opposing counsel about issues that likely won’t affect the damages involved is probably time wasted. If you’ve prepared adequately, you (and your client) should have a reasonably good understanding of the strengths and weaknesses of your case. You should have also prepared your client that a good mediated agreement is often one where both parties walk away not completely happy, but can live with the results. It is the alternative to the much more difficult path of using litigation as a vehicle for resolution. They may not get what they want (that may not even be possible), or they may give a little more than they ideally wanted to for the peace of mind in being done, but they end up rewarded in some way through mediation.

When it comes to how much information to share during mediation, there is a lot of debate. Certainly, you refrain from disclosing information that makes your case look worse to the other party. However, others consider information that actually makes the case look better – as it can be more valuable at trial than at mediation – and therefore, favor not disclosing some positive facts. I have mixed feelings on this. While saving a piece of information like that could have some value later, it may also fall flat. I have seen experienced litigators hold onto something only to have it ultimately excluded from evidence, or not assist the case otherwise. In these situations, maybe it could have been the one thing that would adjust an offer slightly in mediation, or finally get a stubborn party to come to the table more seriously. The only real downside is if a mediation fails that the other side has more time to prepare to address it later. However, you will have the opportunity to confront that challenge as well. Evaluate the possibilities carefully when it comes to potentially positive information about your case.

Often overlooked is the client’s potentially helpful role in mediation. Of course, many attorneys shudder at the thought of letting their client talk too much, as that can have its dangers in depositions, informal meetings, and on the stand. However, mediation is different because of confidentiality. Now, certainly there are some things you don’t want your clients to reveal, as it could possibly open a can of worms in discovery requests later, but you can review with your client in detail the things, However, two important things to note: 1) The client serves a role that you can’t serve in getting through to the other side; and 2) Regardless of effect, clients do get some benefit from getting some things off their chest.

The client’s personal connection to the other side, or the personal expression of their story can be much more impactful in getting through to the other side and softening them slightly to negotiation. Only the parties can say exactly how they feel if they’ve been aggrieved and explain how they’ve been affected in their own words. When the attorney tries to convey these feelings on behalf of the client, the other side sees a hired gun so to speak, and hears legal arguments at times that don’t mean much to them. The client’s value can be especially true where the parties have dealt with each other before, or had a close relationship prior to the dispute.

Let’s not forget about what can be good for the client here, as well as how benefiting them emotionally can benefit you. Parties often descend into contentiousness quickly. In mediation, they are usually communicating in a controlled setting where they can truly be heard for the first time. In addition to the potentially positive effect on the opposing party, allowing the client to share in this way can help them relieve some of their own tension. In my experience, parties given the opportunity to express themselves directly, but respectfully, become much more agreeable. I believe this is because they have spoken their peace about certain things, and while they may still disagree, it enables them to focus more on solutions rather than differences to the extent possible.

One very important role for the attorney is to help the mediator by articulating in detail the reasons for every offer/demand. This touches on things mentioned above, but when each counter offer has been reasonably articulated so that the mediator can convey it in a way that makes more sense, the other party is more likely to be cooperative. This has the power to take what could have been a very long and tense negotiation exchange to one that the parties view more from a problem-solving perspective - one that also tends to move toward resolution much faster.

In all, remember to prepare your client, give them some do’s and don’ts, and prepare yourself with facts and persuasive points to make, but in a less contentious manner than in court. Create realistic goals based on your knowledge and make them with the clients’ best interests in mind – even if it means getting firm, but explanatory with them at times. They usually need your help to decide when it makes more sense to fight and when it’s time to get out as whole as possible.