Your clients may have heard of mediation and may have a vague idea about what it is. They may even be interested in pursuing it because of its time and cost-saving benefits. But they may not have a comprehensive understanding of the other benefits of mediation and how it works.
If you are considering mediation to resolve your client’s case, or even just a few issues, it is important to have a comprehensive discussion to ensure that the client understands how mediation can help and what the client can expect from the process.
In your preparation session, here are a few things you should cover:
Explain the Differences Between Litigation and Mediation
First, you need to make sure that the client understands the differences between mediation and litigation. In most cases, mediation is voluntary, as is any agreement to settle.
Mediation is less adversarial than litigation. The goal of mediation is for both sides to work together with the mediator to solve a problem and come to a mutually agreeable solution, rather than the neutral deciding for the parties the way a judge or jury would in a courtroom.
Explain why the differences may be beneficial for the client. For example, mediation may be particularly beneficial when the parties have to continue to interact after the mediation has been concluded, such as when the parties are from the same family, need to continue to work together or do business together.
Clarify the Role of the Neutral/Mediator
Clarify the role of the neutral and explain how the role of the neutral differs from the role of the judge or jury in the courtroom. Describe the mediator and why you chose them; what you’ve seen from them before. Same with opposing counsel.
Many clients have misconceptions about the role of the neutral in mediation. Some clients believe the neutral is an advocate for their position, who will help to convince the other side to give them what they want. Others believe that the mediator is like a judge who has the power to dictate the outcome of the case. This can be particularly confusing for clients when the neutral is a former judge.
Explain that the mediator is there to help facilitate the parties coming to mutual agreement about how to resolve their dispute and/or settle the case. Some may offer opposing positions in private sessions to highlight the strengths and weaknesses of the case, or may provide information about what is likely to happen if the case goes before a judge or jury. The neutral may challenge the client’s assumptions or have the client try to see the merits of the opponent’s position. But none of those actions indicate that the mediator is on the side of the opposing party.
Clients should be advised that they can provide information to the mediator either themselves or through their attorneys, that the mediator can use to try to settle the case, but request that the mediator keep the information confidential from the opposing party and their lawyer.
Discuss the Format and Length of the Mediation
Mediation can take several different forms, depending on the mediator’s style, the mediation agreement, and the type of case being mediated. For example, in some mediations, each party has an opportunity to present an opening statement or summarize their position in front of both the mediator and the opposing party, while in others, the mediator only meets separately with each side and the parties do not have an opportunity to speak directly in the presence of one another. Find out from the client if they have a preference and communicate that to the mediator and to the opposing party in advance. If the mediator does not agree to this format, your client will be better prepared and will not be surprised or disappointed at the mediation.
Set expectations about the time it may take to resolve the case and let your client know how long you anticipate the mediation will last. If you are attending a mediation settlement day in which several mediations are being conducted by the same mediator, you may only have a specific amount of time allotted for your mediation. If the case doesn’t settle within that time, you may need to schedule another mediation date.
Some mediators will schedule only one mediation for the day and will keep the parties all day to settle the case if necessary. For complex cases, particularly those with many parties, a mediation may last for several months over numerous individual mediation sessions. Find out in advance whether this is the case and prepare your client to set aside the time required for the mediation.
Let the client know that there may be a fair amount of “downtime” while the mediator works with the other parties to the case. For example, in cases where there are many emotional issues involved (such as divorce), more time may be needed during or between negotiation sessions for the parties to come to terms with their emotions.
Describe Your Mediation Position
It is also important to inform your client in advance about the position you intend to take at the mediation and the arguments and evidence you plan to present to support that position. Explain the arguments likely to be made by the other side and how you plan to respond to them. Prepare the client to be open to new information that may come to light during the mediation that might change your position.
In discussing the position to be presented at the mediation, ask the client what they want most to get out of the mediation, and what they want the other side, or the neutral, to know or to hear about. For example, an injured plaintiff may want the other side to hear about the effect their injury had on their daily life. A business owner may want the other side to understand how this case might affect their business or their employees in the future.
One of the advantages of mediation is that the parties can devise solutions that would not be available to them in a courtroom with a judge or jury. Getting the client to focus on the outcome they want to see, rather than the harm that was already done, can be very helpful.
Are there non-monetary concessions that can be made to help reach a resolution? Is the client’s main concern lowering cost, mitigating risk, or getting a quick resolution because of an upcoming deadline or event that makes early resolution preferable to waiting for a trial date? What is the client willing to exchange for that early resolution? Brainstorm in advance with your client and during the mediation with the mediator to develop creative solutions to get the client close to the outcome they desire. Discuss how the outcome of this mediation will affect the rest of the client’s business or life.
Address the Emotional Impact
Emotions can have a major impact on reaching a resolution in mediation. Discuss how the client feels about the case, the opposing party and the subject of the dispute. Ask what they are concerned about hearing from the other side and what they most want to other side and the mediator to know. While emotions are generally ignored in litigation, mediation may provide a forum for clients to express their emotions in a safe environment and help the other side to better understand their position and come to a resolution.
In cases where a mediation involves family members, co-workers, spouses, or others who have a long history together or who may have to work or remain in contact with one another after the mediation has been concluded, emotions can run high. Remind clients that they must show respect for all parties during the mediation.
Address emotions around the mediation process as well. Is the client concerned about seeing or listening to the opposing party? When preparing your client for the mediation encourage them to focus on their main points and desired outcomes when making a statement during the mediation, rather than on attacking the other side or trying to defend themselves or their actions. Point out factual errors in a calm and non-threatening manner, and offer evidence to support your version of the facts.
Set Expectations for Settlement
Discuss with your client the purpose of the mediation and set expectations about the likelihood of the case being settled or the issue being fully resolved during mediation. Prepare your client for the process of negotiation. Emphasize that in a negotiation the parties will not get everything they ask for. Work with your client before the mediation to develop a mindset of compromise. Identify terms can be the basis for compromise and which terms are non-negotiable for the client and why. Where possible, outline alternative solutions that may be acceptable to the client.
Tell the client what you think the settlement range for the case is and why. Prepare the client to hear positions, settlement offers or demands that the client may initially find objectionable or even offensive. You don’t want your client to be shocked by the low number defense counsel initially offers to settle the case, or the high number plaintiff is demanding before substantial negotiations have taken place.
Describe the Benefits of Mediation Even Without Full Settlement
While often the goal of mediation is to settle the case, there are times when mediation can be extremely beneficial even if the case has not settled completely. Mediation can help to resolve some issues in the case, leaving only a limited number of issues to be resolved by the courts.
Mediation can also be a learning experience for the client to find out how the mediator or others view the merits and value of the case. It can be an eye-opening experience for clients who have an overinflated opinion of the value of the case.
Remind your client that even if the mediation fails, listening carefully to the other side will reveal what they believe are the most important aspects of the case, and how they frame the issues involved. This information can be extremely useful in determining how to respond to those arguments at trial.
Preparing your client well for mediation not only helps the client feel confident in what to expect and in your approach to the mediation, but also improves the chances of success.
Ready to schedule your mediation with us? Check out our panel of neutrals here or contact our office at 631-415-4310 to schedule a mediation.