Mediation is becoming an increasingly popular form of alternative dispute resolution. As more litigants turn to an experienced mediator to assist them in resolving their issues, it is important for attorneys to properly prepare their clients for the mediation process. Whether your client is an in house lawyer familiar with the mediation process or a first time litigant, some time should be spent advising your client for the mediation.
If you have decided to go to mediation, there will be a basic assumption on the part of the mediator that the clients are there to negotiate in good faith. Coming into a mediation with the position that either, “We won’t pay a dime,” or “We won’t take less than one hundred cents on the dollar,” will be met by a question from the mediator as to why you came to the mediation. Settlement ranges should be discussed with your client prior to the mediation. At the outset of the mediation, you can take whatever position that you wish to take on the value of the case, but your client should be prepared to negotiate from that position throughout the day.
Another necessary discussion to have with your client prior to the mediation involves an accurate relay of the strengths and weaknesses of the case. Your client should not be surprised when the mediator points out that on a particular issue or two, the case is not strong and that this evaluation should be taken into account in arriving at a settlement. A lawyer needs discuss with his or her client all the reasons that the case should be settled; assuming that the attorney can get to a number that makes sense. You do not have to share those reasons with the mediator, as the opposition is likely to do so, but your client should have a realistic and rational view of the case.
If the case is going to go before a jury, you need to consider whether technical legal arguments and positions as to why your client should be paid or not pay will translate into arguments that will be palatable to a jury. Don’t forget, jurors look for a way to be fair and are likely to ignore arguments which have a solid legal basis, but if followed, do not produce a reasonable and just result.
Additionally, there is room for emotion in a mediation (as opposed to a court room, in front of the jury’s watchful eye) and if your client needs to get some concerns off their chest, then by all means that should be discussed with the mediator. Such discussions serve multiple purposes, allowing your client to vent and giving the mediator a discussion point with the other side regarding how strongly your client may feel about the case.
–Bruce
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.
