Preparing Your Clients for Mediation

One of the most important pieces of a successful mediation is educating the parties about what a mediation is and what happens during a mediation. A lack of preparation can significantly impact the ultimate success or failure of the process.

Lawyers involved in a mediation may often forget that their clients are not familiar with the concept of mediation. They can often take for granted that their clients understand the use of alternative dispute resolution. In truth, for many parties, especially in non-commercial matters, this may be the first time that one or more of the parties has been involved in the legal process at all. In it not uncommon for some parties, who are not otherwise prepared for a mediation, to believe that mediation is simply another type of binding adjudication and that the mediator will “decide” their case for them. Oftentimes, parties can request that witnesses appear at the mediation in the expectation that they will need to present their case during the session. It is crucial for parties to understand that mediation is a non-binding process led by an independent third-party neutral who will not decide the merits of their case. Instead, the parties need to understand that mediation is an opportunity to explain their case to the other side, but neither side can be forced to resolve the dispute during the mediation and, most importantly, that the mediator is not the final decision-maker.

Similarly, parties should be told ahead of time what the lawyer’s intended strategy will be during the mediation. For example, if the case involves a claim for compensation, it can be awkward for the lawyer presenting the case to make a high monetary demand during the mediation and then later attempt to persuade their client to accept a lower amount for settlement. Likewise, if a party is offering payment, it can be confusing for a lawyer to argue for a nominal amount initially and then increase that amount later in order to settle. Unless the parties involved understand and are prepared for the financial negotiation process, it may appear as if the lawyers are “giving in” or “siding” with the other party, especially if the settlement amount is significantly different from the initial demands or offers that were made. Clients can easily lose faith in their lawyers if they misunderstand the posturing that takes place during the settlement/compromise process.?Again, discussing the process of mediation and the manner of negotiation with the parties in advance of the discussions can alleviate the confusion that might occur. Inherent in that preparation is an honest discussion of the value of the case. By addressing this issue in advance, the parties can be more aware of the potentials in the offers and counteroffers that are communicated to the mediator.

The parties should be prepared for the time involved in working through a mediation. Any expectation of a quick presentation and a simple discussion should be moderated before the mediation begins. Successful mediations often can take hours and, in some situations, days. The process should not be rushed for expediency. In fact, it is the time committed and exhausted by the parties involved that often lead to a successful mediation. Again, understanding that a full day may be needed for the mediation, arrangements for time off work, child-care needs, or other possible interruptions should be managed prior to starting the process.

Finally, clients should be counseled to appreciate that mediation is often the best time to resolve a dispute. It is often-times the only true period of a litigation matter during which the litigants can be in control of the resolution. Rather than turning their case over to a third-party trier of fact (judge or jury), mediation allows the parties to make their own decisions on resolution through compromise and settlement. Accordingly, counsel should also educate their respective clients on the risks and rewards of trial so that the client can weigh those elements against the offers it may make or receive.

Mediation can be a confusing concept for individuals not regularly involved in the litigation process. As such, the process should not be taken for granted. It is incumbent upon the lawyers involved in the case, those that are closest to the parties involved, to prepare the litigants for the mediation experience. Advanced preparation could make the difference between a successful or an unsuccessful ADR result.

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For over thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at?[email protected] ?or 404-364-4626