Preparing Clients for Mediation
Joe Ramsey
Copyright © 2009
Your chances of a successful mediation will depend largely on your client’s attitude about and participation in the process. He needs to approach the mediation rationally, be willing to listen with an open mind, and be patient to give the process a chance. At the outset, you may need to persuade him that it is counterproductive to dwell on emotions like revenge, mission, or principle. Such emotions interfere with the logical thought processes needed to make reasonable decisions about settlement and trial. Here are my recommendations how to get past the emotion and prepare your client for successful mediation. The recommendations assume the mediation will follow the traditional format of exchanging briefs, a joint session, and private sessions.
Safety and Hope
You should assume even with a sophisticated client representative that mediation is a new and unfamiliar process. As such, it is natural for any client to be apprehensive. You should start by emphasizing that mediation is a safe process because: It is entirely voluntary; all that is spoken or written is privileged and confidential; no one can be forced to do anything they feel uncomfortable doing; and you will be with the client throughout the process. You can also emphasize that mediation usually results in settlement and that there is therefore a reasonable chance the case will settle if the client has the patience and persistence to give it a chance.
Opportunity
I recommend that you present the mediation process as an opportunity to convince the other side of the merits of your position. The parties have three major ways of presenting their side of the controversy: The mediation brief, the joint session, and private sessions with the mediator.
I recommend that the client be consulted closely in the preparation of the mediation brief. It is important that he understand the arguments set forth in the brief and the factual and legal support for them. It is important that he be given the chance to be heard on questions of what to include or exclude.
I recommend that you explain what you anticipate will be presented in joint session. At a minimum, you will want to explain that you will make a forceful but non-argumentative presentation on his behalf. It is equally important to warn him that the other side sees matters through an entirely different lens and that he will likely disagree with most of what the opposition will present. He should not only be prepared to hear a diametrically opposite view but also encouraged to consider it critically but with an open mind. Beyond your presentation on his behalf, I recommend you consider how he might participate actively; and, once a decision to do so is made, the two of you will have to prepare carefully for whatever he will have to say.
In the private sessions with the mediator, the client should be warned that the mediator’s job requires him to try to convince all sides to compromise and therefore that he will be something of a Devil’s Advocate. He should be encouraged to listen carefully and to fairly consider the arguments of the mediator but at the same time to refute them when he can. This private give and take almost always leads to meaningful compromise needed to settle cases.
Since the mediator is bound to honor any constraints you put on his efforts, I recommend that you discourage the client from presenting arguments why the other side should compromise but then forbidding their disclosure. No competent attorney on the other side will compromise out of fear of the unknown, so veiled threats of a “smoking gun” are a waste of time.
Reasons to Compromise
There are four reasons why every party to civil litigation should consider compromise, and you will of course explore each in detail with your client before the mediation. They are: Risk of loss; litigation costs; delay in bringing the case to trial; and the stress all normal people experience in litigation. Here are some thoughts you might want to share with your client on each issue.
The first reason to compromise is the risk of loss of the entire case or on one or more important issues. Part of our training as lawyers is to anticipate the arguments of our opposition. And part of our duty to our clients is to warn them of opposing arguments. The problem is that zealous advocates often perceive starkly different scenarios from the same fact pattern. So every effort must be made to be sure you and your client appreciate the down side of the case. No matter how strong you think your case is, there is always some risk, and it is dangerous to allow a client to deny the chance of an adverse outcome.
The second (expense), third (delay), and fourth (stress) reasons to compromise are related. Expense is difficult to anticipate and is directly related to delay. Stress is directly related not only to expense and delay but also to risk of loss. Here are some insights on these motivators to compromise which I suggest you will want to share with your clients.
I am able to tell the parties to most mediations that their attorneys are highly ethical and therefore will do whatever is reasonably possible to provide the most time and cost efficient representation – and to limit the expense of representation. Regrettably, however, there are at least two considerations which can drive expense which counsel cannot reasonably anticipate. The first is what the other side might do. The beauty of the adversarial system is that it pits the ingenuity of the parties against one another. So if the other side comes up with something out of the ordinary, it has to be dealt with even if it was not reasonable to anticipate it.
The second factor which drives expense is more insidious. It is that litigants cannot count on how the court will administer their cases. It is not a criticism of those who try to administer the civil justice system that it has become unreliable in most venues. But the reality is that it is problematic at best that you will proceed in an orderly, time, and cost efficient path to a courtroom, a judge, and a jury. Substantial expense is incurred by this dysfunction, and there is little that counsel can do about it.
The expense factor is obviously exacerbated by the delay factor. When you have to prepare for trial two or three times, everyone’s trial budget is invalidated. So delay should motivate compromise not just because it is unpleasant by itself but also for the catastrophic effect it has on expense.
Finally, I suggest you cannot overstate the significance of the stress that litigation causes for the parties. In my experience, this important reason for compromise is almost always underestimated. In my entire career as a trial lawyer and now delivering ADR services, I can count on one hand those individuals who really were oblivious to the wear and tear litigation inflicts on the nervous system. Near the end of a mediation when the parties are close to resolution, it is wise to remind your client that it is acceptable to give a little more . . . just to get it done . . . and just for the sake of their mental health.
Conclusion
The single most important ingredient for successful mediation is arguably your client’s attitude. If he is open minded and committed to the process, you will likely be. If he is skeptical and impatient with the process, you will likely be. I hope sharing these thoughts with your clients will be helpful in your practice.
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