Preparing the Client for Mediation

People who carefully prepare for mediation usually achieve better results than those who do not. This may seem obvious, but it is a fact that most lawyers and clients enter mediations unprepared or only partially prepared. Knowledge equals power in the mediation arena, as in most pursuits, and thoroughly prepared participants tend to overwhelm less prepared participants, who tend to make frequent and substantial concessions as a result.

How do you help a client prepare for mediation? I suggest the following steps:

1) Get all the facts from the client through a detailed discussion.

2) Determine what the client really hopes to achieve through the dispute resolution process. Since clients do not disclose their true objectives when they are simply asked what they hope to achieve, counsel must thoroughly probe client objectives and listen carefully to client responses. Counsel should ask the client, “What is really important to you about this dispute, and why?” This question helps counsel develop settlement options based on authentic client interests instead of solely focusing on getting or giving a certain dollar amount. Prioritize client goals into three categories: essential, important and desirable. Begin to analyze client goals in order to understand the client’s true interests.

Understanding the client’s true objectives is critical to achieving settlement. As much as 53% of settlement failures are the result of one counsel or the other failing to negotiate effectively with his/her own client and failing to reach counsel-client agreement about the goals to be achieved and not because of failure to reach agreement with the adversary. Tom Arnold, “Mediation Outline: A practical How-To Guide for Mediators and Attorneys” in Alternative Dispute Resolution – How To Use it to Your Advantage, ALI-ABA (2000).

3) Explain the mediation process to the client and help the client to understand the procedural stages that are likely to development.

4) Review weaknesses and strengths of the case with the client. Be realistic. Remind the client that when you present the case at mediation you will be emphasizing your strong points but that the client must be very aware of the weaknesses in order to realistically assess settlement offers. Candidly discuss the risks of trying the case, the costs and attorneys’ fees necessary to take the case to trial, and the potential trial outcomes and consequences of those outcomes. Attorneys should tell the client what they hope to achieve in the mediation, but without unduly raising client expectations.

5) Plan for a presentation by the client during the mediation. Letting the client speak can be very effective, for several reasons. Involving the client may give him/her a cathartic and expected “day in court” experience. It can also impress the other side (hopefully positively). If the client is articulate, credible or charming, you will want him/her to speak during the mediation in order to educate the adversary about this strength as early as possible. Coach, evaluate and critique your client prior to the session.

6) Have a frank discussion with the client about the likely consequences of the failure to resolve the dispute during the mediation.  Plainly describe the upcoming dispute resolution process. Offer several possible outcomes that might be expected from that process, ranging from the best alternative to settlement that is likely to develop as well as the worst alternative that you can foresee.