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.
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.
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.
When scheduling the mediation, make sure you advise your client that mediations typically last the entire day and may run into the evening. You should warn your client that the process is long and can be emotionally taxing. Having opposing counsel and the mediator tear down your client’s case will undoubtedly impact your client. Prepare them for the assault.
On the other hand, when the mediator is in the other room (attacking the other side), time slows down. Let your client know that they can bring their laptop, tablet, or a book to help pass the time.
While the mediator will announce this fact at the opening session, prepare your client in advance that the mediator will not decide the case. The mediator’s job is to find some common ground on which the parties will agree to settle. While a good lawyer should impress the mediator (and opposing counsel) of the merits of the client’s case, the mediator is not going decide facts or the outcome.
Because most court-ordered mediation requires all the parties (and insurers) to be present, it affords the best opportunity for settlement. With all the decision makers in the same building (or available by phone), issues that present sticking points may be resolved. While the process is long and frustrating, practitioners should resist the client’s urge to call an impasse. If crucial facts and discovery remain to be uncovered, the parties can usually agree under the rules to adjourn the mediation until a later date so the parties can complete discovery that will place the case in a better position of resolution.
