outresourced by our adversaries. If done
right, we are hyper-prepared for deposition, trial and any motions that arise in
the case. In most instances, we also prepare ourselves for mediation. The mediator asks for a summary or position statement, and we provide a 20-page tome full
of exhibits and case cites.
However, the question remains — are
we preparing the client for mediation
with the same care we would bring to the
deposition or trial preparation? Probably
not, and I think I know why.
As lawyers, we think of mediation as
a process driven by counsel and the mediators. Though the mediator usually
wants to hear from the client directly,
there is an undercurrent of thought
among practitioners that since the client is not testifying, he or she does not
need to understand every factual nuance
in the case. While that may be correct,
the impact mediation may have on the
ultimate disposition of the case requires
thorough client preparation, if only out
of consideration for and faithful service
to the client.
How can lawyers better prepare clients
for mediation? First, involve the client in
the selection of the mediator. Far too often the client simply rubber stamps counsel’s list of suggested neutrals.
Since mediation is a process controlled
by the litigants, the client should have
some role in working with counsel to identify at least the profile of the ideal mediator
for the case. The client may have a gender
or personality preference, or may feel that
a mediator with a more facilitative and less
evaluative approach may be ideal. Counsel
should seek and acknowledge those concerns and preferences.
Second, preparation for the session itself should be collaborative. If money is
at issue, the attorney and client should
establish the first offer or demand and
the bottom line number in advance. The
bottom line number should result from a
longer discussion that includes managing the client’s expectations and securing
acknowledgement from the client that
settlement of the case will likely trigger a
feeling of disappointment.
During the mediation itself, the client
should be an active partner in strategy.
The client may want the mediator to
know something in confidence, or may
want to send a message through the me-
diator. The informed client will learn that
the mediator can be used to take owner-
ship of an idea or proposal, which if initi-
ated from the client’s side, might be seen
as showing weakness.
Finally, offer the client the chance to
speak during the mediation. Pay attention to comments the client may want to
make, either in the plenary or private session. While some clients can be prone to
polemicals or sermons from the mount,
they want to know they were heard and
the mediator took their comments and
emotions into account in any work with
Attorneys must proactively prepare
their clients for mediation sessions. Clients should not feel traumatized at the
end of the mediation. It is our duty as litigation attorneys to ensure the mediation
process is as effective and stress-free as
possible for our clients.
Alan S. Fanger (alan@empowerlegal.
net) is a Boston-based litigation
attorney. He is the founder and
CEO of EmpowerLegal, Inc., (www.
empowerlegal.net), which provides an
online learning platform that assists
clients in preparing for depositions, trials
In other words, mediation is a
significant event, perhaps the
most significant event in any
case that ultimately settles.
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