Lawyers Prepare Clients, Mediators for Mediation

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Summary

• Effectively preparing your client for mediation starts as early as the first time you discuss the case. Overselling to get the case almost guarantees the client will be unhappy with the result and with you.
• Involving your clients in crafting your strategic plan and emphasizing their agency can strengthen confidence and, thereby, reduce concerns.
• One of the best ways to advance your client’s interests is to prime the mediator to advocate for your client’s interests with the opposing side.
• Successful mediation advocates come prepared. Bring a document to hand to the mediator to refute every potential argument your opponent might bring up.

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Only a small fraction of civil cases makes it to trial, and the vast majority of those that go to mediation settle. This means that mediation will likely be your last opportunity to help your client obtain the best possible outcome. As a neutral, I have repeatedly seen the benefits of attorneys who diligently work before negotiations (and the value left on the table when they do not). This article outlines how to prepare your client for mediation, from the time you are retained to the day of settlement. It also details how to equip the neutral to advocate for your client. Finally, it gives you some tips to make sure you are prepared as well.

Start Early

Effectively preparing your client for mediation starts as early as the first time you discuss the case. Overselling to get the case almost guarantees the client will be unhappy with the result and with you, so be realistic and qualify any predictions with potential unknowns. While clients, understandably, want to know how your services will benefit them before they hire you, keeping expectations realistic pays dividends when it comes to settlement talks.

Empirical research reveals that 93 percent of Americans believe they are better than average drivers. Likewise, clients as well as their attorneys tend to see their case more optimistically than it really is. Because the same dynamic is going on with your opponents, they are more likely to compromise if they have sufficient lead time to temper their expectations. Thus, it is important to give them weeks or even months to analyze objective evidence supporting your position (e.g., expert reports, documents not yet produced in discovery, etc.) before you negotiate. This is especially true when the other side is an organization with multiple decision-makers or there is a liability carrier involved.

Sometimes, having your experts attend the mediation is beneficial. Similarly, think through the potential people and entities that may have decision-making power and make sure they are available. You may also need to condition scheduling the session on the other side’s assurance that they will secure certain people’s attendance. All of this requires thinking ahead.

Write a Comprehensive Client Letter

For most of us, before we went to law school, if someone had asked us to attend a mediation, we would have had no idea what to expect, whether we would be cross-examined, or even what to wear. When I was litigating, I developed a comprehensive letter to orient my clients regarding the process, including the following:

• The time and place of the meeting (including the fact that it could last the entire day), appropriate attire, what provision will be made for lunch, and the advisability of bringing a book or other activity to engage in during the potentially long breaks.
• Who may be present, how caucus rooms work, to what extent they will be in contact with the other side, and how this process is different from depositions and trial.
• Legal aspects of mediation, such as whether negotiation talks are admissible, whether mediation agreements are binding, how the neutral’s ethical obligations are different from mine, and other relevant considerations.
• The opportunity to meet without the neutral in the room, so that we can talk about negotiation strategy and the importance of what the client should say (and not say) in front of the mediator. Putting all this in writing will also document that you properly advised your client.

(A copy of my form is available to anyone who emails me.)

Meet the Client

Meeting with your client before the session serves two primary purposes: completing the orientation that you began in the letter and developing your negotiation strategy.

First, discussing the contents of your letter in more detail helps ensure that your client fully understands what you are communicating. Plus, using two types of media—written and oral—correlates with greater retention. Additionally, having a discussion helps reveal what aspects of the process your client is concerned about and confirms whether they understood your correspondence.

At the meeting, use the letter as an outline to make sure that you cover the essential elements. Perhaps the most important thing that a client needs to know is not to tell the neutral things like, “I just want to get this settled,” “Wouldn’t they agree to $X,” or “I really don’t want to go to trial.” These types of statements are like flashing lights to the mediator that your side will make huge compromises to settle the case; once the neutral perceives weakness, you will be pushed on it. This is so important that repeating it and reminding them on mediation day is warranted.

Second, it is important that you and your client are on the same page in terms of your negotiating strategy. Research has shown that the best results are obtained when negotiators “set a clear target before they sit down at the negotiation table and continue to focus on it throughout the negotiation.” This goal is informed by thorough research on the client’s best alternative to a negotiated agreement (BATNA) as well as what your opponent’s BATNA is likely to be. When clients have high aspirations for negotiations, they are more likely to achieve better results, even if they are the “less powerful” party. Another proven strategy is to prime your client to think about their own choices—to understand that they have the agency to agree to a deal or reject the final offer (as opposed to being at the mercy of others). Studies correlate keeping this top of mind with persistence and positive outcomes.

One reason why mediation is so effective is that it helps parties remove their rose-colored glasses. The neutral should listen carefully to the strengths of your case and then, in the other room, forcefully show how that should lead to concessions. Even in cases where there has been robust discovery, there may be a lack of understanding about how you will connect the dots at summary judgment or in front of the fact finder.

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At the same time, mediation is a two-way street: Wise attorneys will give clients a heads-up that there will likely be new, sobering information that may warrant moderating their BATNA. One of the benefits of mediation is that you can delegate part of the role of delivering bad news to the neutral; still, help your client by warning them that it is likely coming. You can do this without looking like you are losing faith in the client’s case by reminding your client that opposing counsel is spending hours and hours developing a strategy to win over the judge or jury; because fact finders do not know the parties and have only a limited slice of information about the case, they often make judgments based on perceptions rather than reality. Thus, the client can get disappointing results in court even if they are “right.” This reinforces the merits of settling rather than taking risks.

However, be careful to adhere to your BATNA unless new, objective information warrants adjusting your bottom line. This makes you and your client less susceptible to subconscious negotiating techniques such as phantom alternatives and framing anchors.

Reducing Client Anxiety

Meeting your client immediately before the mediation is a good strategy to reinforce the things you discussed in your letter and meeting. It also gives you an opportunity to help mitigate your client’s anxiety. Nervous negotiators present a unique challenge as they are more likely to have lower expectations, make less ambitious first offers, and obtain worse outcomes. A Harvard researcher conducted several experiments and concluded that people with unease over an upcoming event, such as public speaking, performed much better when they told themselves that they were “excited” (rather than anxious). So, when you see your client looking worried, say something like, “You look excited about the mediation today.” This will prompt the client to feel less worried and more optimistic. Additionally, as mentioned above, involving your clients in crafting your strategic plan and emphasizing their agency can strengthen confidence and, thereby, reduce concerns.

Preparing the Mediator

One of the best ways to advance your client’s interests is to prime the mediator to advocate for your client’s interests with the opposing side. Thus, taking the time to thoroughly prepare the neutral is a crucial step in zealous advocacy. Attorneys who prepare excellent briefings (compared to those who omit this step or throw something together at the last minute) serve their clients well. It is usually not necessary to start from scratch, as pasting significant sections from your previous letters to the client, expert, insurance company, and others will give you a good start.

Because the neutral, like a judge or jury, will be coming into the case completely cold, be sure to introduce your client and, if relevant, their family. If you represent an entity, present its purpose or product in the most favorable light possible and describe one of its officers who represents its values.

The letter to the neutral should focus on two things:

• the reasons why your client should obtain a favorable settlement, and
• evidence rebutting arguments that opposing counsel is likely to mention in their letter. (I prefer putting the former in the letter’s body and limiting the latter to footnotes.)

Because your goal is to effectively prepare the mediator to advocate for your client in the other room, focus on the most compelling evidence of the same (avoid minute details that are merely distracting). Pasting compelling photographs and the most poignant quotations (e.g., deposition testimony) directly into the letter is effective. Similarly, if there is a legal issue in the case, quote just enough of the statute, case, jury instruction, etc., to make your point and supplement it with concise analysis. In other words, limit the use of enclosures and keep it concise. If there are other important issues, such as other parties that must sign off on an agreement, subrogation interests, or language that needs to be in the settlement agreement, raise them in the letter rather than waiting until the session.

One of the most underutilized mediation weapons is sending opposing counsel a copy of your letter to the mediator. As mentioned above, maximizing the other party’s time to lower their expectations is an important strategy. If there is content that you do not want shared, draft a supplemental postscript that goes only to the neutral.

Because there are no ex parte concerns about communicating directly with the mediator, it may be wise to schedule a pre-mediation call with the neutral. This is especially important if there are things that you do not want to put in writing, such as collateral emotional issues, your client’s unreasonable expectations, or other sensitive dynamics.

Preparing Yourself

Successful mediation advocates, like skillful trial lawyers, come prepared. In addition to your BATNA analysis, bring a document to hand to the mediator to refute every potential argument your opponent might bring up. As when cross-examining a witness, knowing that the perfect exhibit exists does no good if it is not immediately available.

Be an Effective Advocate

Successful mediation, like trial, involves months of careful preparation, good client communication, and excellent briefing. By preparing your client, the neutral, and yourself, you will carry out your duty to be an effective advocate.

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Endnotes

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Author

Craig Nierman

Craig Nierman mediates and arbitrates commercial, insurance, health care, and tort cases. A 25-year litigation veteran and adjunct professor at the University of Iowa College of Law, he is an active member of several ABA...

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Author

Craig Nierman

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