[This presentation is an expanded discussion of the second of four guidelines offered in a previous article titled “Getting to the Bottom Line - Guidelines for Achieving Success at Mediation.”]
So you’ve got your mediator selected and the mediation is on calendar. Obviously you have to be getting your work done by way of discovery and, if lucky, have prepared at least an outline of your mediation brief. If all else continues to go as planned without any cancellations or rescheduling, a meeting with your client should be done as soon as possible. That way, both you and your client will be at the same page once the mediation begins.
Pre-Mediation Client Meeting
At the time of your meeting with your client, present your mediation brief outline so they have an understanding of what the mediator is going to know and hear. The mediation brief is regularly based on discovery and deposition testimony The review of the mediation brief outline will help your client better understand what will be discussed in their presence at the mediation and confirm the factual accuracy of your case.
Your client also should know the arguments of the opposition. There is no reason for your client to show up at mediation and learn for the first time that they are considered to be fabricators of facts and evidence. Giving this information to your client during the pre-mediation meeting will help them develop filters for the information in order to maintain composure during the proceeding. You do not want your client to act startled when they hear the contentions of the other side for the first time.
Your client will likely be “a rookie” at the mediation. Unfortunately, many parties step into a mediation believing that the mediator is going to be acting the same as a judge or arbitrator expecting a decision, order or ruling to be made. Therefore, it is vital that your client be advised of the voluntary and confidential nature of the mediation proceedings. They must know beforehand that the purpose of the mediation is to facilitate dialog informally without the intimidating drama of a courtroom.
It is good to give your client an understanding of who will be conducting the mediation. In many cases a pre-mediation telephone conference with the mediator and attorney to discuss the case and procedure will be completed. Give to your client a profile of the mediator from a website. This profile will disclose to your client background information and a visual image of the mediator. And you can explain what the likely course of procedure will be for the mediation. There is no reason for your client to find out these details at the mediation.
Strategy at Mediation
A strategy plan must be developed with regard to role playing along with negotiations. The client needs to know that questions may be directed to them by the other side in joint session or in private session by the mediator. It is important for the client to know that they can be expected to participate. Encouraging the client to play a part will make them far more comfortable throughout the entire mediation. Both the attorney and the client need to have a common understanding of their respective roles at the mediation
As for the negotiation strategy, the client’s expectations ought to be assessed prior to the mediation. You do not want your client to go into mediation with expectations that cannot be achieved. The client needs to be advised that the mediator is not there to order parties to a settlement. And the client must know the current mediation is not the only time a settlement can occur. They ought to realize if settlement does not occur, the preliminary session may be useful to achieve future resolution. Be sure to explain the negotiation strategy is consistent with reasonable expectations.
Get your client familiar with the facts and contentions of the case by allowing them to review any proposed mediation brief or case statement. Present a mediator profile so the client actually knows who the mediator will be. Also give some description of the general format of mediation being neutral, facilitative, voluntary and confidential. Finally, have a strategy plan set out for role playing with respect to participation in the mediation. And be sure the client understands the negotiation strategy to achieve settlement.