Introduction

What are the toughest issues attorneys face in the relationship with their clients in the negotiation and mediation environment? The preliminary question: to mediate or not? Preparing the client for mediation; Preparing the client to withstand the perils of the joint session; and, How preparing the client for the tough issues benefits both the attorney and client.

This is the second in a series of articles. It is largely the product of interviews with more than two dozen attorneys who have candidly shared their experiences and collective enormous expertise in successfully resolving their clients’ disputes in mediation. The attorneys interviewed range from sole practitioners to those in national firms; representing individuals to Fortune 500 companies, government agencies and insurance carriers. The article is usually a paraphrase of the attorneys’ comments, with the desire to capture the intensity and level of conviction in their approaches to successfully representing clients in a way that preserves the attorney-client relationship, and also addresses the question “What is in the client’s best interests?”  These attorneys provided so much valuable insight on this and related issues, that to be more easily readable, the information is presented in several articles. The final article in this series discusses the following: What special issues face big businesses, government entities, insurance carriers and their defense counsel that impact plaintiffs’ counsel, and how do each prepare for these unique issues? When do attorneys inform their clients in writing of the status of the case and how much do the attorneys tell the clients.

Preliminary Question: To Mediate Or Not?

There is a preliminary critical question to answer which can save a lot of time and money: “To go to mediation or not?”   For the defendant, going to mediation means paying. For the plaintiff, going means giving up some of the claim. There is no ability to mediate in good faith unless the client is willing to compromise. The attorney’s challenge is twofold:  moving his client to reality by having him face the costs and risks of litigation and exploring with his client the benefit of compromise.  One attorney reminds the client not to expect to hit a home run in a mediation.  He also points out  that successful mediations are the product of a compromise solution, encouraging the client to have an open mind going into the process.  Don’t go to mediation if your client is not willing to give up something, perhaps to give up a lot.

 

Preparing the Client for Mediation

Preparation for mediation is everything. Counsel prepare effectively for trial; counsel must prepare just as effectively for mediation. Though mediation is a less formal process than trial, this does not mean counsel can prepare any less for mediation. 

The mediator can ask very probing questions of the attorney and the client.  How the mediator assesses the answers to those questions will, consciously or subconsciously, influence the neutral mediator and his evaluation. Prepare the client for everything and anything. Surprises for the client at the mediation can undermine the client’s confidence in the attorney, the mediator, and the mediation process.  On the other hand, thorough preparation can validate the attorney and enhance the client’s confidence in the attorney, the mediator and the mediation process.  It is critical to inform the client about what to expect during mediation -  from the attorneys, the other parties and the mediator. 

The attorney must know what the client’s needs are, what the client’s agenda is, at the latest, while preparing the client for mediation.  Yet, preparing the client for mediation may require more strategies than trial. Preparing the client for direct and cross examination in trial is different than preparing the client for the unexpected questions that may come from the mediator and questions the mediator may carry back from the other party during caucus.  Explain to your client that though the mediator is neutral, his role is ultimately to facilitate putting together a deal.  He will ask hard questions about the critical issues and push the client to talk about those issues. The client should be prepared to address such questions as, “How do you think the jury will evaluate this issue? the case?”  Prepare your client for all the follow up questions from the mediator should your client not respond realistically. Have positions on all issues thoroughly thought out.

Know what the client’s bottom line is. And what the real bottom line is. Know how to get there and assist the client in an objective assessment of damages. These can be very tough issues for the client, and tough even for the attorney to raise with the client. Other attorneys prefer to have the mediator raise the most probing issues with the client.

Preparing The Client To Withstand The Perils Of The Joint Session

The mediation is the client’s single opportunity to give a free-wheeling account of his position and to be heard. Therefore, preparation must be effective, and not limited to  simply advising the client to tell the facts of the claim. There are too many opportunities to fumble, and as one attorney has stated “once the tooth paste is out of the tube, it’s hard to put it back.” The more counsel is committed to resolving the dispute, the more counsel must be committed to having the client speak in the joint session. For the defendant, it may be very important that there be a comment of contrition, a mea culpa, “I’m very sorry this happened . . .”  In a complicated case, the client has to be prepared to tell the story, tell it well, and tell it with conviction. If this is done in joint session, it can carry impact to the opposing counsel and party. If told only in caucus/private session, with the client looking the mediator straight in the eye, and communicated persuasively, one attorney believes the mediator may make a subconscious value judgment.  Other attorneys, however, strongly believe there are clients who are better off not speaking in the joint session.

Explaining to the client what to expect at every point along the way provides comfort to the client. Point out what to expect in the joint session, the caucuses/private sessions, and from the mediator, opposing counsel and opposing party. Indicate what the opposing counsel is likely to say on each issue of fact and law. Explain how it will sound to your client. Explain in as much detail as possible how it may feel to your client; a general discussion with the client will have little benefit or impact. During the mediation, when these issues are brought up by the opposing counsel or the mediator, it will not be a surprise or shock to the client.  The more thoroughly informed and prepared the client, the more the client will have confidence in his attorney, the process and the mediator. Preparation will ultimately help counsel do what may be in the client’s best interest, i.e, advise or encourage the client to resolve the dispute. Adequate preparation can also alert counsel as to the point in the mediation when the client reaches his limit; when the benefit to the client of going to trial exceeds the maximum possible benefit of a negotiated settlement. This is the point at which some attorneys will stop pushing their client toward settlement.

How Preparing The Client For The Tough Issues Benefits Both The Attorney and Client

It is particularly helpful to discuss all of those things the client especially does not want to hear. Issues such as the weaknesses in the client’s case, the strengths in the opposition’s case, the costs of going through trial, both in monetary and emotional terms, and the risks. The client likely does not want to hear about these issues or to deal with them. And this may cause just a little tension between the attorney and client.  However when the client hears the opposing counsel bring up these points during the joint session, the client will not be taken by surprise and think his attorney has failed him. When the mediator asks probing questions of the attorney or the client during caucus/private session, the client will recognize the issue, hopefully have some level of comfort in discussing it, deal with it, and since the neutral mediator has brought it up, begin to understand the need to look at the issues realistically.

One attorney believes that, most importantly, when the mediator brings up these difficult questions for which the client is prepared, the conscious and subconscious impact is for the client to have more confidence in his attorney, the process and the mediation. The attorney is validated. Imagine if the opposite were to happen. If the client were to hear something of consequence for the first time from the mediator, it could completely undermine the client’s confidence in his attorney. Goodby client.

Additionally, the building of confidence in the attorney, mediator and the process may expedite the settlement. If the client does not have confidence in his attorney or the mediator, every issue becomes a big issue; every counter offer becomes a major decision that can take an inordinate amount of time. The well-prepared client is able to make decisions more comfortably and more quickly.  When the client has confidence in his attorney, especially at the end game when the client is pushed to make the hard decision (i.e.,  to give up more than he was prepared to give up), the client is more likely to accept his attorney’s recommendation. (What will that recommendation be? What  truly is in the client’s best interest?)

The mediation process is all about compromise. Some parties in mediation expect to get 100% or more (including attorney’s fees, expert’s fees and interest) of their claim, and others expect to pay nothing. If the client expects to avoid compromising, what hasn’t happened between the attorney and client prior to the mediation? Some attorneys remind the client what the financial cost will be in going through trial. They remind the client what the emotional cost will be, the days the client will be involved helping the attorney prepare for depositions, participating at depositions, preparing for trial, and spending days in the courtroom during trial.  Additionally, remind the client that on all the days in between he will be thinking about all the issues, the impact on his personal life and work or business, and loss of future business.  And the complete uncertainty of trial. And the certainty of a settlement, and the elimination of risk of trial and additional costs and fees and emotional drain.  Always remind the client of these painful realities. Always gently.

According to one attorney, if the client has been thoroughly prepared for the mediation, the attorney should be comfortable to “keep his mouth shut” during the joint session and caucuses/private sessions.  The client has to feel that he has been able to tell his entire story, so he can accept the negotiated result. If the case does not settle, the client may feel he did not have the opportunity to tell his side of the story.

Acknowledgment

Thanks to the attorneys who gave so generously in candidly sharing their valuable experience with me. I wish the readers could have been on the phone with me during the interviews for the sometimes very exciting inside look into the strategies of some terrific lawyers. I apologize to the attorneys who I work with who I did not interview. Candidly, after a certain number of interviews, obvious similarities emerged which avoided the necessity of additional interviews. And to those attorneys who have not yet read the issues discussed in their interview, be patient, the best is yet to come.