Mediation preparation includes clients too
With approximately 80% of cases that go to mediation settling, preparing clients ahead of time is critical.
Several years ago, I represented a former employee in a misclassification case that was transferred from Boston to the federal court in Chicago. The parties agreed to mediate the case with a magistrate judge, and after a seven-hour session, we were able to settle the case. When we emerged from the courthouse, I asked my client what she thought of the process. Her response was telling.
“I thought I got hit by a truck but somehow survived,” she responded.
I probed further, and the feedback I received was two parts insightful and one part troubling. She said she didn’t understand much of what had taken place during the mediation session, but felt constrained from seeking answers to the questions she had throughout the day.
I asked if I had prepared her sufficiently for the session. Perhaps out of respect, she did not answer directly, but instead said, “I don’t think anyone can be prepared for something like that.”
Nonetheless, I inferred from the answer that I had not given her enough of a road map to guide her through the process. All of which led me to ask whether we as a profession are doing enough to prepare our clients for mediation.
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Preparing for mediations
There are no reliable statistics concerning the percentage of cases that settle at, or following mediation. However, anecdotal evidence suggests that it is probably no less than about 80%. In other words, mediation is a significant event, perhaps the most significant event in any case that ultimately settles.
As litigators, we are obsessed with our own preparation. We worry that we may be outworked, outfoxed, outplanned or outresourced by our adversaries. If done right, we are hyper-prepared for deposition, trial and any motions that arise in the case. In most instances, we also prepare ourselves for mediation. The mediator asks for a summary or position statement, and we provide a 20-page tome full of exhibits and case cites.
However, the question remains – are we preparing the client for mediation with the same care we would bring to the deposition or trial preparation? Probably not, and I think I know why.
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As lawyers, we think of mediation as a process driven by counsel and the mediators. Though the mediator usually wants to hear from the client directly, there is an undercurrent of thought among practitioners that since the client is not testifying, he or she does not need to understand every factual nuance in the case. While that may be correct, the impact mediation may have on the ultimate disposition of the case requires thorough client preparation, if only out of consideration for and faithful service to the client.
How can lawyers better prepare clients for mediation? First, involve the client in the selection of the mediator. Far too often the client simply rubber stamps counsel’s list of suggested neutrals.
Since mediation is a process controlled by the litigants, the client should have some role in working with counsel to identify at least the profile of the ideal mediator for the case. The client may have a gender or personality preference, or may feel that a mediator with a more facilitative and less evaluative approach may be ideal. Counsel should seek and acknowledge those concerns and preferences.
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Second, preparation for the session itself should be collaborative. If money is at issue, the attorney and client should establish the first offer or demand and the bottom line number in advance. The bottom line number should result from a longer discussion that includes managing the client’s expectations and securing acknowledgement from the client that settlement of the case will likely trigger a feeling of disappointment.
During the mediation itself, the client should be an active partner in strategy. The client may want the mediator to know something in confidence, or may want to send a message through the mediator. The informed client will learn that the mediator can be used to take ownership of an idea or proposal, which if it initiated from the client’s side, might be seen as showing weakness.
Finally, offer the client the chance to speak during the mediation. Pay attention to comments the client may want to make, either in the plenary or private session. While some clients can be prone to polemicals or sermons from the mount, they want to know they were heard and the mediator took their comments and emotions into account in any work with the opposition.
Attorneys must proactively prepare their clients for mediation sessions. Clients should not feel traumatized at the end of the mediation. It is our duty as litigation attorneys to ensure the mediation process is as effective and stress-free as possible for our clients.
Alan S. Fanger (alan@empowerlegal.net) is a Boston-based litigation attorney. He is the founder and CEO of EmpowerLegal, Inc., which provides an online learning platform that assists clients in preparing for depositions, trials and mediations.