Do you do this before each mediation?

Posted by Richard Lord

November 18, 2023

I write from the perspective of having been a civil trial mediator for the past 24 years. Beyond explaining the process to your client and preparing your summaries and presentation, there are several things that you can do before the mediation to increase the odds of success and of having a satisfied, if not happy, client. Your client needs to be involved in the identification of “the good, the bad, and the ugly” of their case so that a realistic understanding of your limitations in working on their behalf can be developed before the heat of the moment of mediation arrives.  This exercise allows them to work with you through the uncertainties and likely disappointment and frustration that can be a part of successful mediation. This advance work should include the running of various scenarios and options along with the rough probabilities so your client can understand in advance why they may not be wrong to consider an outcome far different than what they may feel is their entitlement or you may view as their best case. Your mediator may well ask you your thoughts on the probabilities and it may be better for your client to have already heard it and to have already gone through an analysis of the law, facts of the case, and other factors. If the first time they hear about probabilities and risks is at the mediation, there is a greater chance your client will not like it when they must be able to make decisions based upon it.  And hearing it before the mediation means they will be hearing it from you and maybe the mediator for the second or third time thus increasing the likelihood their decision-making will be based on a rational evaluative process as opposed to unreasonable expectations, emotion, or some other motivator.

It is also important that your client understands the multiple hats the litigator wears when it comes to mediation.  You are both their advocate and their counselor, and those two hats are starkly different. I see clients emboldened by the opening statement of their able advocate. You should tell your client that you have two hats, one is worn when you are speaking for them to the other side; and the other when it is just you and them in the room, and perhaps the mediator.  Tell them about those two hats before the mediation so they are mentally prepared for your gymnastics. Being clear about that helps avoid your client becoming overly optimistic from your opening or rebuttal comments to the mediator in caucus. Explain to them that your advocacy is designed to maximize their outcome and that your counseling of them is geared toward being smart and realistic. Remind them that they should not interpret talk focused on uncertainty and risks in caucus as being inconsistent with your advocacy or as an indication you are changing your mind. Doing so will help them be a reasonable and informed business partner with you in the mediation.  Informing them will help them be more satisfied with the results of mediation and perhaps more importantly, with your work on their behalf.