Resources

Educating the Client on the Process

There are multiple decision-points in mediation, including whether and when to participate in one. Court-required mediations may preempt some of the timing decisions, but having the client onboard is a necessity. Clients who have just filed a lawsuit – or been sued – may psychologically frame an early resolution as “giving up.” Helping the client understand mediation as an expected step in the litigation may dissipate some of the resistance. Mediators certainly have an important role to play in reinforcing this message once the mediation begins, but the client should arrive with a basic outline of the mediation process, its confidentiality rules, the benefits of resolving the case at mediation, and what to expect as the day proceeds. If draft MOUs or settlement agreements are circulated between counsel before the mediation (a good and increasingly common practice), make sure the client is looped in and ok with the agreed non-monetary terms.

Reviewing the Strengths and Weaknesses of the Client’s Case

Lawyers can be wonderful writers, but hopefully they know not to believe their own press. Clients, however, may lack such discernment, and a persuasive mediation brief may have the effect of hardening the client’s position. “Wow, nice work counsel, we really are going to win this case!” is not necessarily what you want to hear the night before the mediation. There are a few techniques to avoid this counterproductive result. One is to recognize that a mediation brief is different in nature from a legal brief intended to persuade a judge, and draft accordingly. Be honest about the weaknesses of your case and provide a realistic analysis of damages. It will gain you credibility with the mediator and the opposing side (should you decide to share it), and give your client a more realistic perspective going into mediation. At minimum, make sure your client understands that the mediation brief is an advocate’s work. Another potentially effective antidote might be to share with your client the opposing party’s mediation brief (or perhaps a synopsis of it). Either way, have some frank discussions with your client about the litigation risks they face and the benefit of resolving the case now rather than later.

Preparing the Client for the Emotional Impact

Mediation can be emotionally fraught. Monetary offers and demands will seem outrageous or insulting. Facts and arguments transmitted by the mediator may trigger strong reactions. Of course, large opening demands and nuisance counteroffers will not deter experienced attorneys, but they may derail the mediation if the client is taken by surprise. Sometimes the client’s emotional responses to the process may be cathartic; often they will just be painful. Counsel can be helpful by talking with the client in advance about the emotional aspects of mediation. Mediators vary in their approach, but in most cases a mediator will have questions for the clients (or certainly questions only the clients can answer). The client should be prepared for that sort of engagement. 

Educating the Client on the Mediator’s Tools

Finally, consider educating the client on the sorts of negotiation tools the mediator might use at mediation to facilitate a resolution, including bracketing, separate caucuses (sometimes with lawyers only), and the use of a mediator’s proposal. Obviously, clients that are repeat players may be familiar with these techniques, but a refresher never hurts. Good mediators will explain as they go, but clients may appreciate the heads-up.

Glossary of Mediation Terms For A Well-Prepared Client

Opening Session or Joint Session: a meeting with all lawyers and clients together, sometimes conducted at the beginning of the day, and sometimes not conducted at all.

Caucuses: private meetings between the mediator and one party or their counsel.

Memorandum of Understanding or “MOU”: the short-form agreement signed at the mediation, identifying the key deal terms.

Mediation Confidentiality: the duty of the client and lawyer not to disclose the substance of the mediation negotiations and discussions (including anything the parties say at mediation) to third persons.

The Mediation Brief: a letter that the parties submit to the mediator describing their view of the case, including the law and facts. It is often shared with the opposing side(s).

Opening Demands and Offers: the starting point of negotiations, not an indication of where the negotiations will wind up.

Bracketed Negotiations or “Bracketing”: a technique where a party or the mediator proposes a tighter range for negotiation to move the parties closer together and speed up the negotiation process.

Mediator’s Proposal: a technique by which the mediator proposes a settlement to the parties and requires a response by a date or time certain. If all sides agree, they have a deal. If all sides do not accept the proposal, the mediator informs the parties that there is no agreement. In that instance, to avoid prejudice in any future negotiations, the non-agreeing party is not told the other party’s response.

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Peter S. Rukin is a mediator at Sequitur Resolutions and partner at Rukin Hyland & Riggin LLP. He can be reached at peterrukin@sequiturresolutions.com.