Do Lawyers Really Understand What They Need to do to Prepare for Mediation

Recently I was invited by our local legal publication to be one of five persons on a Mediation Roundtable to discuss mediation techniques. We were interviewed by a moderator on various topics about mediation. I was the only lawyer in private practice on the panel. The others were all mediators; three were lawyers who are now doing full time mediation and the other was a retired trial court judge who for the last seven years has been mediating privately with a local service.

What I heard shocked me: Lawyers don’t know how to prepare for a mediation, and most of the lawyers who attend mediations just are not doing a very good job. The mediators all explained the hurdles they had to overcome. Their chief complaints could be listed as follows:

• There is no strategy or plan by the lawyers for their clients;

• The briefs submitted are “too brief,” and cursory;

• The lawyers have not prepared the client for the process; the clients have little understanding of how a mediation works and what can be accomplished;
• The parties are hostile to each other, or the lawyers are, which detracts substantially from the need to candidly communicate;

• The clients are not prepared to discuss “the numbers”; the client has no idea what the value of the case is;

• The lawyers have not discussed mediation as an alternative to trial – i.e., the “present value” of money (i.e., a settlement) versus the uncertainty of a recovery in the future;

• The client believes that the mediator is going to decide something and does not understand the role that the mediator plays as a neutral.

• The mediators spend too much time (one said 30%) of the initial time doing what the lawyers should have done to educate the clients;

• The lawyer is impatient with the process, so the client is as well.
  

So there you have it. The perception of at least these mediators was that we are not doing a good job for our clients by taking advantage of the mediation process, participating in it and educating our clients so that they have a real opportunity to resolve their cases. They seemed to uniformly agree that the “mediation process” begins with education by us of the client about that process and how the client can gain from the dialogue about the case and perhaps achieve a resolution of the dispute.

In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important for us to factor in mediation as part of the Litigation Management Plan, and make it an event in the process of representing the client just like a deposition or hearing on a key motion. We discuss mediation as a way of testing the case, as well as posturing it for resolution. We also advise the client how a mediation works, what its advantages are, and alert the client to mediation as part of the evolution of the case – a main event for which we will prepare just like we prepare for trial. I also stress that our advocacy is not comprised by our participating in a mediation. Indeed, I tell clients (after I agree to take the case) that offering to mediate is a show of confidence and strength in our position, BUT mediation involves looking realistically at the issues – liability, damages and collection of any judgment – and the costs of going to trial in comparison to the value of a settlement.

Since courts are sending many cases to mediation and parties seem more interested in participating, we need to be more mindful that clients need to be educated from day one about this important part of the litigation mechanism. While many courts require lawyers to inform their clients about this process at the outset, it seems that at least my mediator colleagues believe we need to pay more attention to, involve and educate our clients, and make this a part of the ongoing discussion of the case.