12 | MAY 2018 | Claims Magazine | PropertyCasualty360.com
“I thought I got hit by a truck but somehow survived,” she responded.
I probed further, and the feedback I re-
ceived was two parts insightful and one
part troubling. She said she didn’t un-
derstand much of what had taken place
during the mediation session, but felt
constrained from seeking answers to the
questions she had throughout the day.
I asked if I had prepared her suffi-
Preparing for mediations
ciently for the session. Perhaps out of
respect, she did not answer directly, but
instead said, “I don’t think anyone can be
prepared for something like that.”
Nonetheless, I inferred from the an-
swer that I had not given her enough of
a road map to guide her through the pro-
cess. All of which led me to ask whether
we as a profession are doing enough to
prepare our clients for mediation.
There are no reliable statistics concerning
the percentage of cases that settle at, or
following mediation. However, anecdotal
evidence suggests that it is probably no
less than about 80%. In other words, mediation is a significant event, perhaps the
most significant event in any case that ultimately settles.
As litigators, we are obsessed with our
own preparation. We worry that we may
be outworked, outfoxed, outplanned or
Several years ago, I represented a former employee in a misclassification case that was transferred from Boston to the federal court in Chicago. The parties agreed to mediate the
Includes Clients Too
case with a magistrate judge, and after a seven-hour session, we were
able to settle the case. When we emerged from the courthouse, I asked
my client what she thought of the process. Her response was telling.