Preparing Your Client For Mediation

Thanks for clicking through! Let’s put some meat on the bones of the three topics I introduced earlier:

Substance

Don’t believe everything you read in your own mediation brief. 

Most lawyers submit traditional mediation briefs, which are exclusively advocacy pieces. Sure, a mediation brief needs to put your client’s case in the best possible light, but it’s not a summary judgment motion or a trial brief. The best mediation briefs devote some time to the problems with the case. In preparing the client for mediation, you should make sure you and the client are on same page from the beginning of the mediation. Mediations can go off the rails if the attorney has not gone over the strengths and weaknesses of the case and advised the client that the discussion of damages in the mediation brief is usually designed to quantify the maximum downside risk of loss, not to suggest a settlement value much less a bottom line position.

Process

Litigation is an adversarial process; mediation is not.

Instead of looking at mediation as another in a series of adversarial events during the life of a case, try looking at mediation and the mediator as a tool or resource. Negotiation behaviors can change when counsel and parties start viewing mediation more like a joint problem-solving collaboration than a cage fight. Lay out a context for the anticipated negotiation. It is frequently described as a dance. Your client may find the first steps demeaning, be deeply disappointed with the experience, and develop a negative interpretation, which can poison the chances for success. Encourage your client to appreciate that feedback from the mediator is one of the opportunities of mediation and that it can assist you both in refining the picture of what is a satisfactory resolution. As a result, mediation can be viewed as a potential learning experience about how others view the risks presented in the case. Remind your client of the voluntary nature of mediation. The client’s control of the outcome, in collaboration with the other participants, and in contrast to a trial, is one of mediation’s strengths. If you prepare your client with this mindset, the client can be more flexible, adjust their expectations with your guidance, and see the value of hearing different points of view during the mediation.   

Emotions

It’s okay to show your emotions.

Negotiations are not purely rational exercises. It is often tough enough to manage our own emotional triggers without having to concern ourselves with another person’s emotional reactivity. Yet, the risk of emotions taking over the negotiation demands that we attend to both before mediation. You can overcome many of these problems by recognizing that the client’s feelings of comfort, recognition, and autonomy are essential to the success of the mediation. In your preparation, discuss with your client how their emotional concerns will be addressed in the mediation. What does the client really want the mediator/other side to understand about the harm that was done? Are there issues that would be best left unaddressed? Ask the client about anxieties or worries once they understand what is coming and be sensitive to the signs of potential emotional triggers. Above all, tell the client not to worry about getting emotional. A good mediator will expect and be prepared to deal with the spectrum of emotions that occur during mediation. The most successful mediations are often the most emotional because the client feels heard and the mediation can serve as a substitute day in court.