Mediators Speak: The Difficult Client

Rachel Ehrlich

We are writing here about the difficult client in the context of civil disputes and specifically in the context of exploring settlement of all or part of a matter that is either in litigation or heading toward litigation. “Difficult” is often equated with “unreasonable,” and both are in the eyes of beholder. Everyone has a reason for what they want or are doing, sometimes that reason is indiscernible to all except the person taking the action or position.

In mediation, parties may express expectations that are unlikely to be met through negotiation or litigation. These seeming “unrealistic” expectations may be as to amount or other possible outcome of a dispute or they may be emotions that will not be met through legal process (e.g., “I just know that the other side is going to be told that they are evil” or “they will come begging for forgiveness”). There is another, more rare, “difficult” client and that is the person who wants to win against their own lawyers so there is a competitive impetus for the client that can come out later in negotiations.

Mediation, being a confidential, more flexible, party-oriented process can be a place where possibly unrealistic expectations/evaluations as to amount or legal outcome can be explored and recalibrated and/or it can be a place where emotions are part of the conversation (whether overtly or subtextually). It is also a place where that rare client who wants to win against their own lawyers can have that win without the possible all-or-nothing risk of trial.

Lawyers first need to consider mediators who the lawyers think can work with the lawyers’ own client or who the client will trust and who the lawyers can trust. Then the lawyers need to actually trust the mediator by having pre-mediation session communications that sensitize the mediator to the things the lawyer may never put in writing. Alerting the mediator to client expectations and emotions allows the mediator to prepare and work with you synchronously to achieve optimal outcomes, whether that is settlement or better-informed decision making toward trial.

The latter point is critical. Mediation does not always result in settlement on the day of the mediation session. The mediation mantra is now, “Mediation is a process, not an event.” So leverage the process to assist with the difficult client and even if the case goes to trial, everyone should know why it did not settle and why trial is the best option to resolve the dispute.

Jeff Kichaven

Few challenges frustrate lawyers more than a “difficult client.” That is, a client who rebuffs your approach and advice, then turns argumentative or silent over time.

It’s the client whose calls you return at 8:55, 12:05, or 5:05, hoping to get voice mail while you still maintain the façade of responsiveness. The one whose file stares at you from the far corner of your desk, reviewed only when absolutely necessary. The one over whom you lose sleep as you rack your brain trying to figure out how to re-establish a good working relationship.

If the problems remain unaddressed, we all know things will only get worse. A bad outcome, a growing A/R, maybe even a malpractice claim, could result.

If only there were a way out.

Fortunately, there may be—in mediation.

Though it’s not widely recognized, mediation doesn’t just get cases settled. Mediation can also help mend, improve, and even cement relationships between lawyers and their most challenging clients. Here are three tips on how it works.

1. Mediators are good at reminding lawyers that their difficult clients are probably not bad people. They may be good people, just behaving badly under difficult circumstances.
   
   This distinction opens the door to curiosity and empathy for both the mediator and the lawyer. Together, we ask: What led these people to act this way? What more do we need to understand about them and their circumstances? How can we help them consider whether different behaviors might lead to better outcomes?
2. Mediators are good at setting the stage for clients to reconsider their behaviors, strategies, and tactics. Lecturing and scolding rarely work.
   
   What works better? The mediation process. Prepare—and ask the mediator to make sure the other lawyers are prepared—for a narrow, tailored opening joint session, where everyone explores the key issues keeping people apart.
   
   Follow this with a caucus where you and the mediator candidly discuss the other side’s points and the overall strengths and weaknesses of the case. When clients observe this dialogue, all but the most bull-headed generally realize that the case is not the lead-pipe cinch they initially imagined it to be. When they come to this conclusion based on their own observations rather than as the result of force-feeding, their behavior is more likely to change.
3. Mediators are newcomers to your case and your relationship with your clients. If clients remain highly emotional and “difficult,” the mediator/newcomer is in a good position to try this approach, suggested to me by Dr. Mark Goulston, an outstanding business psychiatrist.
   
   A mediator might say to your client, “I see this situation makes you angry (or frustrated, or another emotional response).” The client will generally agree. The mediator may then ask, “What part of the situation makes you the angry the most?”

According to Goulston, the client must engage different regions of the brain—the more rational parts—to answer. Once those other parts of the brain engage, emotion and rationality are in better balance. The client is more likely to become less emotional overall, better able to make good decisions, and generally less “difficult.” Reasonable settlements often result.

While there’s no one-size-fits-all remedy for deteriorated attorney-client relationships, the mediation process and the involvement of mediators can help. Let your mediator know in advance if these are the challenges you face, and give these approaches a try. I bet you’ll be glad if you do.