Sunday, April 15, 2007

Mediation Tips for Attorneys

The primary goal of mediation is to help the parties resolve their disputes. As a mediator, I do not represent any of the parties or their individual interests; instead, I am neutral, meaning I am not biased toward the interests of any one party over another. That is the job of the attorneys in the case.

Although it is the job of the attorneys to promote and protect the interests of their clients, there are certain things attorneys can do to help the mediation process (and to help their own clients) which may differ from the strategies attorneys typically employ in litigation. These are my "tips" for a successful mediation.

Preparing For Mediation: I often see attorneys who spend considerable time preparing their clients for depositions but almost no time preparing their clients for mediation. As attorneys, we are so familiar with mediation and the distinctions between trial, arbitration and mediation, that we often forget that part of the job of the attorney is to "translate" the legal world for our clients and to prepare them for what to expect at each stage of the case, including mediation. Clients need to be prepared for the mediation process, including the environment, the level of formality/informality, who will be present, who will be making decisions, how long the mediation might take, what the role of the attorney is and what the client's role is and how the client should prepare for the mediation.

One of the best ways I know to prepare a client for mediation is to explain how litigation works in the real world. This means explaining that although offers and demands may be exchanged, each side must constantly re-evaluate the merits and challenges of their case during litigation based on new facts or information that comes to light or is viewed in a new light. Each side continually determines the potential value of the case and what the merits and challenges are of the alternatives to settlement. The case value and alternatives are not static - they are constantly changing in often unexpected ways. Trial attorneys understand this phenomenon but we need to be sure our clients understand this as well. The more the client understands the constant re-evaluation required in litigation, the more the client will be thinking realistically about a fair resolution at mediation under the unique circumstances of the case because, just like other proceedings or stages of a case, mediation often results in the discovery of new factual or legal information that significantly impacts the case; attorneys and clients must be prepared for this in order to re-evaluate their case and reach a fair settlement.

This does not mean the client must sacrifice his or her needs or interests in mediation - quite the contrary actually. Clients are frequently "stuck" at a certain mindset or settlement value based on what they have heard from their attorneys (or their friends who are not involved in the case) instead of thinking about their own interests, motivations and needs. The more realistic the attorney is up front about the value of the case and the challenges and costs involved and the constant re-evaluation that is needed, the more prepared the client will be to enter into a fair and reasonable settlement at mediation based on all of the information.

The Mediation Process: Whether your mediation is required by contract or court order or is completely voluntary, the mediation process is different from a court hearing or trial and has unique benefits for your individual client. Your clients are paying not only for the mediator's time but for the mediator's skill and experience in resolving disputes. Trust the instincts of your chosen mediator to do the job for which she or he has been entrusted to perform and to guide the process in a way that satisfies the needs of the parties on multiple levels and allows a settlement to be reached.

The mediator can use all the insights and information the attorney has to offer which can help illuminate the underlying interests of the parties, bridge gaps between the parties and arrive at an agreeable resolution. The more information you can provide your mediator, the more tools the mediator will have to work with. Feel free to talk to the mediator one-on-one with any information you think might be helpful. You can do this before or during the mediation and attorneys should prepare their clients for the possibility of this happening. As a mediator, I always let parties and their clients know that I may use private meetings with each side or just with their attorneys on occasion, and that the confidentiality of these meetings can be enormously productive in helping to get the case resolved.

Think Holistically: Your client came to you not because he or she enjoys litigation (if so, you have larger issues to deal with!). Your client came to you so that you could solve a problem for them. The question for the attorney is whether a proposed settlement is in the best interests of your client. Your client may or may not know what is in his/her best interest and relies on your legal knowledge and recommendations. The best interests of the client are not always met with discussions focused only on money. Although money-focused discussions are often a central discussion point, frequently, it is the non-financial discussions which help seal the deal.

As the attorney, you want what is best for your client and you want a settlement you can feel good about. I want the same thing; the only difference is that I want all parties and their attorneys walking away feeling good about the mediation process and the settlement that was reached based on the unique facts and circumstances of each particular case.

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