Wednesday, June 19, 2013

Preparing the Case for Mediation

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion.

So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely:

  • Discuss the costs, risks and benefits of not reaching a settlement.
  • Discuss the best result each party can hope for in litigation.
  • Discuss the worst result that could happen in litigation.
  • Ensure that the client knows the facts and issues of the case.
  • Examine the legal and factual strengths and weakness of each party’s case.
  • Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” items. 
  • Surmise the opposing party’s position, goals, and interests. 
  • Explore the client’s emotions that the dispute, the other party, or aspects of the mediation may trigger.  Allow the client to express those emotions before the mediation, but reassure the client that a skillful mediator will help the client manage the emotions and their appropriate expression during the mediation.
  • Advise the client on how to best put forward his or her interests.
  • Advise the client about any confidential information which should, as a matter of strategy, not be disclosed to the other side or disclosed only when strategically appropriate.
  • Help the client set reasonable expectations for mediation.
  • Identify sources of objective criteria that will allow principled bargaining over money.
  • Develop additional strategies for handling the money issues involved.  I'll discuss many of these strategies in later posts.
  • Prepare the client to expect unforeseen evidence or arguments that may arise during the course of mediation.
  • Prepare the client for questions the mediator or the other party may pose to him or her.
  • Identify possible impediments to a negotiated solution, including relationship issues, data or information problems, conflicting interests, structural sources of the conflict, and value-based sources of conflict.
  • Brainstorm possible solutions to the situation, especially focusing on solutions that can satisfy the interests of both parties.  Ask the client to identify and list all the responses he or she can make to satisfy the other party’s interests. 
  • Ask the client to identify and list all the responses the other side can make to satisfy the client’s interests.
  • Determine whether any limits exist on a party’s ability to settle.
  • Discuss negotiation styles.
  • Develop an opening offer strategy.
  • Practice, in role-play, the agreed strategies and styles.

How lawyers prepare clients for mediation depends on their client representation skills, their experience with the process, their attitudes towards mediation, their expectations about the process, and the client’s expectations about the process.  Over twenty years ago, I represented a client in mediation for the first time.  Instantly, I was a “true believer.”   After that transformation in perspective and professional goals, I have spent the last two decade assembling the skills I need to teach students about mediation, represent clients in the process, and serve as a skilled neutral.  While mediation may no longer be the latest fad, lawyers still have plenty to learn about effectively using the process on behalf of our clients. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm. By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

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