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.