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By: Rick Morefield Failing to fully prepare a client for mediation is one of the most common errors I see newer lawyers make in mediation. Newer lawyers know that it is important to educate the mediator about the case, but they sometimes miss the importance of educating the client not only about the case, but also about what to expect in mediation. Mediation is a process. It requires the client to exercise patience. It requires the client to have faith in the lawyer, the mediator, and in the mediation process. But, a client cannot be expected to trust the process if the client doesn’t know what to expect. Even clients who have been through mediation in other cases need a quick refresher that focuses on the unique aspects of the current case.  Below is a quick list of topics to cover. 1. Explain what will happen in the opening session.  Typically, the mediator explains the process, but it helps if the client has heard an overview from their lawyer first. This should include information about anything unique to expect from the mediator. It is becoming more common for parties to skip an opening statement. If opening statements will be given, make sure the client knows that the opponent may make statements or arguments that offend them.  If your client is forewarned, your client will be more likely to keep control of their emotions. It is equally important to explain to your client that your opening statement is advocacy and they should take it with a grain of salt. 2. Explain that the initial offers and demands at mediation will usually be unacceptable to both parties.  Defendants typically start with ocean bottom offers; plaintiffs tend to make sky-high demands. Remind your client this is a process and to let the process play out. If the client is surprised, their emotions may derail the mediation. 3. Have a frank discussion with your client about the strengths and weaknesses of their case.  No case is perfect. Mediators will tend to highlight case weaknesses during caucus sessions. Clients are better able to trust the mediation process if they have already heard about the weaknesses in their case from their own attorney. If they hear about weaknesses for the first time from the mediator, they may tend to lose trust in their lawyer or in the mediator.  4. Warn the client that the mediator will ask hard questions in the caucus sessions.  It’s the mediator’s job to help each party see the weaknesses in their case. Remind your client that the mediator is doing the same thing in the other room. Encourage your client to listen to the mediator and carefully evaluate what they hear. The mediator wants a good outcome for the parties. 5. Remind your client to keep a poker face when the mediator is present.  When a satisfactory offer or demand is made, the client should not look too happy. More negotiating may lead to a better offer or demand. When an offer or demand is disappointing, the client should avoid arguing with the mediator. You should discuss with your client when or if they should discuss the case with the mediator and when they should defer to you.  6. Provide your client with a detailed understanding of the costs and the risks of trial so your client can have context to evaluate the reasonableness of settlement offers or demands.  Make sure your client is aware of any additional costs that may be incurred if the case proceeds to trial. It is helpful to prepare a spreadsheet for clients that shows what they would take home from a settlement after deducting fees and expenses. The spreadsheet should also show their “take home” with different potential outcomes at trial. For defendants, the spreadsheet should show the “all in” cost of a settlement compared to the cost of different outcomes at trial. Without this information, your client may not understand the real impact of a settlement on their life or business. 7. Finally, ask your client what their needs are.  Does your client want to go to trial? Does your client consider trial unthinkable? The goal of mediation is to maximize the benefit to your client. Knowing your client’s desires and needs will help you provide better advice at mediation.

Are you involved in a lawsuit and facing the uncertainty of a trial? Are you looking for a way to avoid that uncertainty and reach an agreed outcome? If so, mediation may be the answer. Mediator and trial attorney Rick Morefield had a recent experience that demonstrates how the outcome of a trial depends as much on the jurors selected to decide the case as it does on the quality of the case or the skill of the lawyers. ABOTA and ABA Offer Trial Academy for Less Experienced Lawyers: Lessons Learned from a Product Liability Case In September 2022, the American Board of Trial Attorneys (ABOTA)  and the American Bar Association (ABA) Tort Trial and Insurance Practice Section offered a one-week Trial Academy to provide training for less experienced trial lawyers. Mediator and trial lawyer Rick Morefield was one of the instructors and mentors. During the week, the students got to practice and receive training on jury selection, opening statements, direct examination, cross examination, and closing argument. At the end of the Trial Academy, the students conducted a full trial in front of a jury picked from the normal state court jury pool in Reno, Nevada. This year’s trial was a product liability case involving a young boy who allegedly suffered a traumatic brain injury that was caused by a defective roller coaster. The Trial Academy had enough jurors available that it was able to have the entire jury pool observe the trial, but then it split the jury pool into two separate juries for deliberations. The two juries deliberated in separate rooms while the students and instructors watched the deliberations on a video feed. One group of jurors rendered a verdict for the plaintiff and awarded $5 million in damages. The other group of jurors rendered a verdict for the defendant. It is shocking that two juries who heard the same facts and arguments presented by the same lawyers at the same time reached such wildly different verdicts. Although this was an unexpected outcome, it was a valuable lesson for both the students and the instructors. The same thing can happen in a real trial. Regardless of the skill of the lawyers and the justice of the cause, trial lawyers and their clients are ultimately at the mercy of their jury.  The Importance of Mediation This is why mediation is so important. A skilled mediator can help all parties see what could go wrong at trial and avoid the uncertainty of a jury verdict. Mediation allows the parties to bypass the uncertainty of trial and the unpredictable nature of juries. Mediation allows the parties to control the outcome of their case by reaching a settlement with the assistance of a skilled mediator. Save Time, Money and Relationships While mediation does not guarantee that an agreement will be reached, it does provide an excellent opportunity for parties to have honest discussions with a neutral mediator about the strengths and weaknesses of their case. This can save time, money and stress associated with trial. Mediation can also help to preserve relationships between people who will have to do business with each other in the future.  Avoid Lengthy Trials and High Legal Fees Mediation gives parties the chance to find a resolution that works for both sides and that takes less time  and money to achieve. By reaching an agreement through mediation, parties are able to minimize costly court fees, expert witness fees, attorneys fees, and the time associated with a lengthy trial and possibly an appeal.  MSB Law: Your Trusted Partner in Mediation Mediation is a great alternative to trial for resolving legal disputes. MSB Law provides highly experienced Overland Park and Kansas City mediation lawyers for many different types of claims and disputes. Rick Morefield heads the firm’s mediation services practice and regularly serves as a mediator in Overland Park, Kansas City and throughout Kansas and Missouri.  If you need a mediator, call us at (913) 839-2808 to get on Rick’s schedule!