By: Richard Lord
I write from the perspective of having been a civil trial mediator for the past 20 years. Before the mediation, there are several things, beyond explaining the process to your client and preparing your summaries and presentation, that you, as an attorney, can do to increase the odds of success at the mediation and of having a satisfied, if not happy, client. Your client needs to be involved in the identification of “the good, the bad, and the ugly” of their case so that a realistic understanding of your limitations in working on their behalf can be developed before the heat of the moment of mediation arrives. It will allow them to listen to and work with you through the uncertainties and likely disappointment and frustration that are often a part of successful mediations. Part of this advance work should include the running of various scenarios and options along with the rough probabilities so your client can understand in advance why it may be wise to consider an outcome far different than what they may feel is their entitlement or you may view as their best case. Your mediator may well ask you your thoughts on the probabilities and it may be better for your client to have already heard it and to have already gone through an analysis of the law, facts of the case, and factors that may lend credibility or support one way or the other. If the first time they hear about it is at the mediation, there is a greater risk that they will not like the analysis when they must be able to make decisions based upon it. And telling them before the mediation means they will be hearing it from you and maybe the mediator for the second or third time, thus increasing the likelihood their decision-making will be consistent with a rational process as opposed to unreasonable expectations, emotion or other motivator.
It is also important that your client truly understand the multiple hats the litigator wears when it comes to mediation. You are both their advocate and their counselor, and those two hats are starkly different. Too many mediations see clients emboldened by the opening statement of their able advocate. You should tell your client that you have two hats, one of the advocate when you are speaking for them to the other side; and the counselor hat when it’s just you, them and perhaps the mediator in the room. Tell them about those two hats before the mediation so they are mentally prepared for your gymnastics. Being clear about that helps you avoid having your client gain confidence from your opening or rebuttal comments to the mediator in caucus. Explain to them that your advocacy is designed to maximize their outcome and that your counseling is geared toward their being smart and realistic. Remind them that they should not take talk focused on uncertainty and risks in caucus as being inconsistent with your advocacy or as an indication you are changing your mind. Doing so will help them be a reasonable and informed business partner with you in the mediation and, when you reach settlement, they won’t think you took them somewhere out of weakness.
What should you do when the case does not settle? What happens next is the typical focus. Some responses are familiar such as keeping an open mind and encouraging your client to do so; considering who now needs to be deposed, what new manner of proposal should be made, what evidence requested, motions filed or experts retained. Your thoughts typically focus on what needs to happen to get it settled or what needs to be done to get ready for trial or other adjudication. But there is something I suggest you do that will help you in future mediations for this client and if not, certainly for others. Too few litigators do it. I suggest that after each mediation that does not result in settlement you try to come up with at least three possible reasons for the impasse or adjournment. That list should influence your preparation for future mediations. Perhaps not each thing you identify was a cause of what happened, and adjusting accordingly won’t guarantee that your next mediation results in settlement, but you will be building greater awareness of factors you can address in advance of and during each mediation going forward. By actively deconstructing and learning about the process each time, you will become a more effective advocate for and counselor to future clients in the mediation process. To learn even more, we hope you’ll attend the Mediation Committee’s presentation “You Can Always Be a Better Negotiator” at the Palm Beach County Bar Association’s Bench Bar Conference on March 20, 2020. And for additional tips and resources please visit the ADR committee page on the Palm Beach County Bar Association’s newly updated website.
Richard has been a mediator with Upchurch, Watson, White & Max since 1999. Until 2016 he lived in Orlando and worked predominantly in Central Florida. Now, from the firm’s office in West Palm Beach, he mediates throughout South Florida as well. Richard is on the Council of the American Bar Association’s Section of Dispute Resolution, is a Fellow of the American College of Civil Trial Mediators (ACCTM) and is listed by the National Association of Distinguished Neutrals. You can learn more about him at https://www.uww-adr.com/biography/richard-lord and he can be reached through his assistant, Norma Abreu, at (561) 533-7553.