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.