Preparing Your Client for Mediation

Martin Peterson, Ph.D., is a long time colleague of mine. He is a litigation consultant who has been providing these services for 30 years. He tells this story:

In a recent case, our 25 year old female client had been sexually harassed on a work site by having a work elevator dropped on her while working underneath it. This was intended to teach her a lesson! The elevator crushed her spine. The other side continued to discount her, offering a low settlement. We went to mediation. She waited in another room until everyone had assembled for the start of the mediation. She then wheeled into the room, directly approaching the defendants’ attorney. She leaned forward out of the wheelchair, extended her hand and said, "Thank you so much for coming here today. I appreciate your concern and efforts." She then wheeled around the room, shaking everyone's hand and thanking each person for taking time to come to the mediation. When she got beside her lawyer, she said, "Time to get to work" and wheeled herself out of the room. Her demeanor and behavior added another $1Million to the settlement.

Winners help their attorney win; whiners hinder their attorneys.

Well, my good friend and professional colleague is very correct. The client is a key to a successful mediation in many ways. While the story that Dr. Peterson relates is unique in my experience because of the ability of this client to impact the mediation environment, it is important that our clients be well prepared for the mediation process. This does not mean preparing them to make a presentation, or influence the other side in the way that Dr. Peterson relates, but it does mean making sure the client is ready to participate in the process. This means also making sure the client understands what the process is designed to do, and how it works.

In some cases, the other side may have already seen and heard from the client in deposition. I would be reluctant to participate in a mediation as a defendant unless I had some insight into who the plaintiff is and what impression that plaintiff will have on the fact finder, court or jury. Whether a deposition is the proper means of assessing that depends on the case. I have often offered up the client for a limited deposition to the defendant for this purpose, or even an informal interview.

In some cases, like wrongful death for example, where you have a surviving widow and children, or parents in a case involving a death of a child, an interview may be all that is needed – a “looksee” is enough. The same may be true with a catastrophically injured plaintiff. These are highly emotional cases, and it is just a matter of assessing that level of emotionality and its influence on the outcome. So, I welcome a brief deposition session or interview of my plaintiff client for this purpose.

But there are other aspects where preparation of the client is required. It is just as important to prepare the client for the mediation as to do the other preparation. A prepared client will be able to make decisions as the mediation progresses on what terms and conditions of a settlement are to be considered and acceptable. Often, the client’s perspective on settlement will change as the mediation progresses. That is good because the client hears what the other side has to say and can consider the points and counter-points of the case and factor those into the decision-making process.

Here are some thoughts:

· Prepare for the Process: Your client needs to be prepared for the process by having the appropriate attitude before attending the mediation. I usually have a pre-mediation conference several days before the mediation. During this conference I describe the informality of a mediation, that it is not a trial as the mediator has no power to decide anything, and that the mediator’s role is to facilitate negotiations and resolution. I also describe the “give” and “take” of the process, and tell the client not to be discouraged by this bargaining process, nor be offended by it.

· Understand Confidentiality and What that Means: I also make sure the client understands that what takes place at the mediation is confidential. I stress that nothing which is said or done during a mediation can be brought up in court during the trial of the client’s case. Clients often are surprised at this. They need to know that they will not be prejudiced by the process.

· Get Down to Business: This is where the client enters the business process of resolving disputes and essentially steps outside the courtroom. I stress that it is the client’s decision whether to settle, and I make sure the client has all necessary information to make an informed decision about whether or not to settle.

· A Chance for an Objective View of the Case: I explain that the mediation is a chance for us to get an objective view of our case, so we should listen carefully to what the mediator says. The mediator will often comment on the issues and give his or her views on each side’s case and the pros and cons of settlement versus proceeding further. This provides an objective, third-party’s view of the matter, which can be very valuable.

· Using the Proper Words: The proper words should be used in getting the client ready for a mediation (or for settlement for that matter). Words like “victory,” “doing battle,” “defeating the other side,” or words of war and combat have no place in getting a client ready for mediation and setting the right tone for the negotiation process. This is not war; this is negotiation and compromise, so words appropriate to that process should be used. I prefer words like, “educating the other side about our case,” “working with the mediator [and the other side] to resolve the dispute,” “resolution,” “settlement,” and “compromise.” I also stress that we are not giving in, and these words don’t mean that. I remind the client that it takes all parties having the same attitude to get a settlement that works for all.

· Settlement is Voluntary; There is No Decision Unless All Agree: Some clients think a mediation is an arbitration and the neutral will decide the case. I stress that no one is forcing the parties to settle. A deal will be done only if all agree to all terms and conditions. No one is going to shove a settlement down a party’s throat; they should not even try, although sometimes a little persuasive effort may be used to make clear what a settlement means in the client’s case and how the client can benefit from this process.

Here are some more thoughts:

· Do you give the client your views on the settlement value of the case, or do you reserve that for discussion during the mediation?

· What do you tell the client about the expectations at the mediation?

· Clients will often ask: What is my case worth? What will the other side offer? How much should I expect to get? What should I be prepared to settle for? Why should I take anything less than full value? I try to avoid giving the client a predicted range, although sometimes it is necessary to get a client to think in terms of a realistic figure for settlement.

There are three ways to approach this:

· Don’t give the client a number at all, but tell the client that a “demand” should be made first (if you are the plaintiff), and you and the client need to see how the defense responds and what the mediator says before you line up any numbers;

· Give the client a reasonable but fairly wide range for settlement, suggesting that the ultimate number will be affected by how the defense postures during the mediation and how effective the mediator is at moving to the higher number;

· Just set a rock bottom “walk away” number and work from there.

One of the major tasks in preparing for mediation, and any settlement negotiations for that matter, is to inquire about a client’s expectations of how a settlement will benefit them. This involves advising the client of the pros and cons of a settlement, whether directly negotiated or resulting from a mediation:

· The costs of further proceeding;

· The certainty of a settlement versus the uncertainty of a result by trial or arbitration;

· The emotional drain on the client and family or business partners;

· Adverse publicity that might result;

· Public “airing” of personal life and issues, particularly sensitive medical or psychological problems;

· The present value of money in hand versus the chance of a greater gain at trial [which can very much effect, and in fact lower, a client’s unrealistic expectations];

· The positive impact on life planning of having money now rather than the long wait through trial and appeal.

I try to go over the major points in favor of a mediated resolution. I point out that a mediated result is a business-like way of resolving a dispute through a third party neutral who may comment on the issues in the case. The client should be ready to engage in this process and understand that this can be a productive, positive way for resolution. And, the client has control over the outcome! That is not true if the case is left to a jury’s discretion.