Preparing Clients for Mediation
Join me as I talk tips for upping your trial performance. I’ll cover all aspects of the trial, including, jury selection, opening statements, direct witness testimony, cross-examination, closing arguments, jury instructions, and verdicts. Discussions are welcome in the comments section.
— Tad Thomas
I. Introduction
Well-advised attorneys prepare their clients for mediation day. Most clients are unfamiliar with the process and may have unrealistic expectations regarding the value of their claim, how the process will go, and what the end result will be. To ensure they understand what will happen and to protect yourself, it’s advisable to prepare your client for what to expect and what not to expect during mediation.
There are numerous mediation techniques—some of which are considerably more effective than others. Whereas the judicial process focuses on the legal conflict, mediation offers the opportunity to assess the strengths, weaknesses, risks, and benefits of a claim while keeping human interests in mind.
In addition to you and everyone from your law firm privy to the case, make sure your clients know what their case is really about, why the outcome of the case is important, and what their chances are of winning based on the opposing counsel’s presentation.
II. Valuing a Client’s Claim
When it comes to valuing your client’s claim, make sure your client understands mediation can be a cooperative negotiation process, and it requires both trust and honesty. Your client will need to know that if mediation is successful, they will not receive a check that day, as case expenses, attorney fees, liens, etc., need to be taken care of first.
To avoid potential conflicts, do not give a specific value to a case. There’s no way to predict with 100% accuracy how mediation will go, nor will you be able to determine what the mediator will ultimately decide is fair for both parties. All you can do is remind your client that their settlement value is not based on their debt but rather their presumed damages. In many instances, mediation allows injured parties to come to a reasonable resolution.
If your client is insisting on a specific claim value, give them an expected range with the understanding that there’s no way to know what exactly will happen once mediation begins. The expected range can be based on their damages, as well as your experience with similar cases in the past.
Court-ordered mediations require all parties and insurers to be present, which means it’s the best time for your client to settle. It’s normal for your client to experience frustrations and want to call an impasse. In the event crucial facts haven’t been uncovered, explain to your client that participating parties can usually agree to adjourn the mediation until a complete discovery can put the case in a better position to be resolved.
If multiple defendants are involved in a personal injury claim or wrongful death case, the defendants will likely have different views of the overall value of the case. Because of that, advise your client that it can be useful to let the defendants meet before the scheduled mediation. This will give the defendants a chance to express their views on the value and potentially expedite the mediation process. The pre-mediation meeting among the defendants could take place weeks or hours before the actual mediation. When a case involves multiple plaintiffs, pre-mediation caucuses are just as important.
III. Managing a Client’s Expectations
When it comes to managing your client’s expectations of mediation, you want to exceed them. Depending on the situation, this can be challenging to do, but it’s all about preparing your client for what to expect from mediation and the mediator overseeing their case.
Make sure to start by explaining how the process works and what the mediator’s job is as an unbiased entity. They do not pick sides. They are not an arbitrator of a judge. While they will announce facts at the opening session, the mediator will not decide the case. Instead, they will seek to find common ground.
It’s the mediator’s job to examine claims and defenses. Your client may feel as though the mediator is advocating for the opposing party. They should know that the mediator will play devil’s advocate, and it’s their job to question and critique the claims constructively, so it’s imperative to have a solid grasp on a case’s strengths and weaknesses. Every case has its weaknesses, so be candid about them and explain why the strength of your client’s case will outweigh any of its weaker aspects.
When it comes to compensation—which is likely the primary reason your client pursued legal action in the first place, your client needs to know that insurance is all about money. If the opposing party is an insurance company, they will likely try to reduce the settlement as much as possible, which is why you’re there. Your client should have faith in your abilities to present their case in a way that the mediator favors their situation.
Also, make sure they understand that they will not receive a check on the day of mediation. They should be privy to any and all case expenses, attorney’s fees, and liens. This way, they will not be disappointed when they do not receive a check for their actual full settlement amount once those expenses have been taken care of.
In an effort to ensure your client understands what they are agreeing to, consider having them sign off on each demand and rejection. This will not only protect your client, but it will also protect you in the event they later say they would have settled.
Ultimately, mediation is about patience. Unlike a trial, your client will need to listen and consider the arguments made by the opposing counsel. It’s normal for frustration to arise, but your client needs to remember that their side is being equally heard and considered by the mediator.
In addition to that, mediations are often long and boring. It’s likely the process will last the entire day and run into the evening. For those lulls where the mediator is in the other room with the opposing counsel, advise your client to bring their laptop, tablet, or a book to help pass the time. This will help keep the nerves down and help your client keep their eye on the end result.
IV. Explaining the Mediation Process
Your client needs to understand what their claim is really about. As their lawyer, you choose where their story begins, what elements are included, and where it ends. Choosing those parts needs to be intentional so you can convey a clear picture of what your client has been through. The focus of their story should be less about what happened and more about why it happened.
Once your client understands the story you’ll be presenting on their behalf, it’s time to explain what they can expect when it comes time for the mediator’s proposal. All critical work should be done prior to this point, and make sure you have the client’s trust to act as their spokesperson for the purpose of mediation. Make sure they understand what actions could jeopardize their settlement offer. But, also remind your client that it’s ultimately their job to decide if they want to come to an agreement with the opposing side. While you can advise them of their options, they are the only one who can decide if settling is right for them.
If you’ve worked with the chosen or assigned mediator before, explain their tendencies to your client. Having an idea of how the mediator has handled cases in the past can give you an edge when it comes to fighting for your client and reaching a reasonable resolution.
There’s also the matter of technology. Depending on the circumstances, your client’s mediation could take place over a videoconferencing platform like Zoom. If that’s the case, they will need to have a general understanding of the platform and be aware of potential complications or troubleshooting.
Your client needs to know what to expect if mediation is unsuccessful. Mutual solutions aren’t always possible, but that doesn’t mean the process is over. If parties fail to come to an agreement, the mediator can take on the role of the courtroom and will take into consideration the evidence and facts. The mediator can predict what a court of law would decide, and both parties can take that into consideration. The mediator’s overall goal is to push both parties beyond what they would otherwise be willing to agree to through negotiations without losing the opportunity to obtain a resolution.
There are several options if mediation fails. The first two options are to go back to mediation and start over. Your client may be able to choose a different mediator if you believe the first was ineffective. Your client also has the option of continuing negotiations on their own, without a formal proceeding.
If those options are not appealing, they can go to trial and have the case reviewed by a judge. Agreeing to mediation does not mean giving up the right to litigation. However, it should be carefully explained that proceeding to court will be much more expensive as they will have to pay for the mediation process and the litigation process. It will also take longer to resolve the case, and your client will lose control of the dispute when they enter the judicial process.
V. Conclusion
When parties call on a mediator to help resolve a claim, it’s acknowledged that a resolution cannot otherwise be reached. When it comes to preparing your client for mediation, there is a lot of ground to cover, but it often boils down to valuing their claim, managing their expectations, and explaining the general mediation process.
Throughout the process, your client will come to understand that the mediator’s role is vital when it comes to breaking impasse and reaching a settlement agreement. Successful mediation is based on you and your client knowing their needs, knowing the relevant laws, trusting the mediator, and a willingness to openly, fairly, and creatively negotiate.
There is a right time and a right way to handle the mediation process, including presenting the facts and disputing a case’s weaknesses. Both sides need to determine what point they’re willing to reach and what is reasonable in terms of settling. While a skilled mediator can break impasse of the process and negotiations, it’s ultimately up to the participating parties to decide the outcome of the case.
