It goes without saying that good case preparation is critical to a successful
mediation. Good client preparation is equally important. All too often
counsel will ask for use of a conference room half an hour before mediation
to meet with a client and it becomes quickly apparent as the mediation
progresses that it was the only attorney-client meeting to prepare for
the mediation. Caught by surprise by what opposing counsel does in the
opening, by what the mediator says about the process and their case and
the rigors of extensive back and forth negotiations, clients can become
anxious, defensive, and angry. Those types of emotional reactions interfere
with the good listening and objective thinking that is essential for effective
and realistic negotiations and good outcomes.
A client should not be brought to mediation without at least one extensive
preparation meeting within a week or so of the mediation. Considerable
time should be spent making sure the client understands the procedure
and its nuances. The client should be prepared for the possibility that
opposing counsel may direct their comments to them in the opening session
and that they may have to listen to things that are difficult for them
to hear. At the same time they should be reassured that they will not
be subject to examination or even have to speak while the parties are
together. Counsel and their clients should discuss and decide together
whether there is anything the client can say in the opening that would
be helpful to their position without posing a risk that it would do more
harm than good.
The client should be fully educated on what counsel will say and what documents
will be used, and why, in the opening. They should understand that it
is a highlight summary presentation and not all the evidence, including
things that they think are important, will be discussed, but that there
will be opportunity for them to “tell their story” in the
individual sessions with the mediator and include those items in the negotiations.
They should be as fully prepared as possible for what opposing counsel
will say and how. Making sure that clients have the opposition’s
mediation submission will be helpful in setting realistic expectations.
Similarly, clients should know what to expect to hear in the mediator's
opening remarks, including the confidentiality aspects of the process,
its nonbinding nature and the need to listen carefully and understand
the risks and uncertainties of proceeding to trial. They should be made
aware that the mediator is likely to be discussing the risks and potential
problems with the client’s case more than its strengths. They should
understand that this does not mean the mediator is "against them"
and that the mediator will be taking a similar approach with the other
side. Clients should be told in advance that the mediator can be asked
to leave the room for private conferences between client and their attorney,
that private communications with the mediator can be kept confidential
from the other party and that they are likely to experience long, drawn
out back-and-forth negotiations, sometimes based upon "positional
bargaining", unlike others that have experienced in their lives when
purchasing cars or houses.
While the increased use of mediation has made it a familiar and regular
activity for trial lawyers, they should remember as they prepare their
clients that, for them, it is a new experience and very important day
and should be treated as such.