With most states and some federal district courts adopted court-ordered mediation, the well-advised attorney will prepare the client for day of mediation. While insurance adjusters, debt collectors, and other well-seasoned clients may have had numerous encounters with the mediation process, most clients are unfamiliar with the process. It pays dividends to advise your client what to expect and what not to expect during the mediation.
1. The Mediator Does Not Pick Sides
Generally, the mediator will state at the opening session that he is unbiased as to any party. However, it is part of the mediator’s job to drill down on claims and defenses when he is meeting with you and your client alone. It may appear to the inexperienced client that he is advocating and favoring the opposing party. Prior to the mediation, inform your client that the mediator will play devil’s advocate with both parties. As part of the mediation process, each party needs to know the strengths and weaknesses of their case. Compromise can only be accomplished if a party understands that he has something to lose. A good mediator should constructively question and critique the client’s claims, which may make him uncomfortable. Advise your client that the mediator is simply doing his job.
2. Be Open Minded and Listen to Opposing Counsel’s Presentation
Unlike a trial, where the parties are entrenched in their positions, mediation calls for clients to listen and consider the arguments made by opposing counsel. Mediation is generally the first time your client meets opposing counsel. Although the client may have a sense of the attorney’s style through pre-mediation correspondence, mediation allows the client to preview what opposing counsel will demonstrate during opening statements and closing arguments. Your client may discover facts and arguments that he had not considered or had refused to consider. Opposing counsel’s presentation may also serve to refresh your client’s recollection as to the events and evidence available to the opposing party. It may also help your client recall some additional facts and evidence that may assist to counter their arguments.