Preparing for Mediation
Preparing for Mediation -Key Points to Communicate to Your Clients Before Mediation
This blog post is part of a series that combines my experience and formal education as an attorney and a mediator to offer some suggestions for lawyers preparing for mediation. Lawyers should always meet with clients before mediation to discuss the legal case and prepare for potential resolutions and the mediation process. Please keep this in mind as you review blog posts in this series.
If you are a client and are represented by an attorney, please feel free to share these postings with your counsel to help you prepare for mediation.
If you are a litigant and do not have a lawyer, please contact my office to determine if your matter is suitable for our office to represent you for the limited purpose of mediation.
If you are a lawyer and have questions (or disagree) with my recommendations, please feel free to contact me.
Authority – What It Is, How to Obtain It, and Ways to Protect Yourself and Your Client
When preparing for mediation, in any case, but particularly in civil litigation, lawyers need to be ready to seriously consider settlement options. To do that, they should work with the client to determine the BATNA (Best Alternative to a Negotiated Agreement), WATNA (Worst Alternative to a Negotiated Agreement), and MLATNA (Most Likely Alternative to a Negotiated Agreement) with the client. Document each of them, especially the BATNA. If the client is not grasping the concept, keep trying! It is important for all clients attending mediation to understand the risks and the worst-case scenario of not resolving the case at mediation. If you are unfamiliar with the concept, please get your hands on Fisher and Ury’s Getting to Yes and read it as soon as possible!
Understanding the Client’s Goals Before Mediation
Additionally, spend some time with the client determining their goals in the case. Ideally, this started when you first accepted the case, and you continue to revisit the client goals as you get closer to meeting them. If you do not know how to establish goals with a client, I encourage you to read Levy's Legal Project Management. He suggests that having a goal of “getting as much money as possible” is akin to a client telling an architect to build a big, nice house. In a civil case for damages, it is not enough to say they want as much money as they can get. Work with the client to imagine their life in 1, 3, and 5 years and understand where this case fits in.
Review Documents and Uncontested Facts with the Client before Mediation
Before this mediation, be sure you fully understand the legal aspects of the case, particularly the financial issues. Have all damages clearly documented and the documents provided to the other side. Have the policy limits for all policies. Determine any potential reductions to a resolution, including liens, and how much they may be compromised or reduced. Explain each of these documents to the client and how they may impact the mediation.
Discuss Potential Outcomes of Mediation (and Litigation) with the Client
Be sure to discuss potential resolutions, in detail, with the client. Discuss both monetary and non-monetary objectives they may have. Review, with the client, the methods the opposing counsel or parties may use to evaluate the monetary aspects of the case. With the client, create a list of what they are seeking. Discuss what you estimate to be potential ranges, realistically. Compare that to the client's expectations, and if they differ, work with the client to understand the basis for your evaluation compared with their expectations. (Don’t forget to work to negotiate liens with third parties or to seek non-monetary relief to satisfy the client’s goals.) Once you have a range from the client, particularly if this is the first time you have negotiated this matter, it is a good idea for the client to authorize resolution within a range of options, delineating what is to be paid (including fees and costs), and what they would net. This should happen before the mediation, and the client should be aware that this is a starting, not an ending point.
I do not recommend getting the bottom line from a client. During mediation, you may learn more, or the client may change their feelings, making the initial number inaccurate.
What Clients Should Know About the Role of the Mediator
This short list should be reviewed with clients before mediation so that the client is fully informed about the mediation. Clients often think that mediators are working as judges or arbitrators, and working to clarify the role before the mediation will benefit the process.
Mediators are:
Individuals who work with parties in a dispute.
Providers of a confidential way to work on approaches to resolve conflict, usually involving resolution of a dispute.
Experts in processes.
Facilitators of problem-solving discussions.
Impartial.
Trained in providing parties with self-determination in both substance and process.
Skilled in creating processes that promote diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
Good listeners.
Teachers: Many mediators may teach parties how to communicate during mediation (transformative mediators), may teach lawyers how to understand determining interests or positioning in mediation, or even explain substantive law. While they are not trained teachers, resolving conflict is often part of a learning process.
Mediators are not:
Arbitrators: They will not hear the evidence and tell you what the case is worth (non-binding arbitration) or tell you what the client must take (binding arbitration).
Judges: Some judges use a process, a settlement conference, and may suggest options based on their understanding of a case. A mediator does not play that role.
Lawyers: While they might be lawyers in addition to being mediators, during mediation they will not give legal advice. They may ask the attorneys questions about the law and ask them to explain to their clients, but they will not give legal advice. Many mediators do not have substantive knowledge about the law in an area, and as experts in the process, that is not required in many, if not most, disputes.
Counselors: While many mediators are skilled in some of the same ways as counselors and may ask questions designed to meet the parties' interests, they are not trained counselors and will not provide therapy.
In civil litigation, mediation is often the starting point for negotiations to resolve the case before trial. However, in some situations, it is the last stop for resolution before trial. Advocates should fully represent their clients and gain every advantage to resolve the matter within the client’s goals to fulfill their responsibility to the client. If you would like to learn more about preparing for mediation, contact me for free resources.