Tuesday, June 18, 2013

Preparing the Client for Mediation

In this series of posts, I have discussed the roles of lawyers in the mediation process.  This post continues that discussion.  

Now that the lawyer and client have chosen mediation as a way to handle the dispute, the lawyer may wish to:

  • Explain what is expected of the client during the mediation.
  • Remind the client that the object of mediation is not to “win,” but to reach a satisfactory resolution.  Remind the client that mediation is simply a continuation of earlier negotiations.
  • Encourage the client to value in the mediation process the pre-existing relationships between the parties or the improved relationships mediation can create.
  • Ensure that the client or client’s representative has authority to settle.
  • Discuss who will give each portion of the presentation and the role the client will play in the overall process and decision-making.
  • Advise the client to develop a working relationship with the mediator, use the mediator as an ally, and protect the client’s credibility and trustworthiness with the mediator.
  • Coach the client on more effective communication styles.  Ask the client to avoid confrontational or adversarial communication, if possible.  Encourage professional and courteous behavior and the use the language of persuasion.
  • Work with the client to prepare an opening statement.
  • Prepare a confidential memo for the mediator if he or she has not requested case information in another form.
  • Have the client view a videotape of a mediation session.  I recommend Program on Negotiation, Saving the Last Dance: Mediation Through Understanding, available at http://www.pon.harvard.edu/news/2001/stld_video.php3 (Nov. 8, 2005);  Program on Negotiation, Mediators at Work: Breach of Warranty, available at http://www.pon.org/catalog (Nov. 8, 2005).  

This excerpt 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.       


  1. As a hiring partner at a major law firm, I wanted to take a moment to say that I'm confused by this "preparation" of which you speak.

    I'm not impressed with "mediation" at all. The last thing our clients need is someone wearing Birkenstocks showing up with djembe drums and rainsticks telling us how we need to "feel" about the next hostile takeover or antitrust suit they're facing. I'm sure it works for SOME people, but in the end our clientele need us to fix their problems without incurring extra loss to the bottom line. That's why they call us.

    You want to know how we "Prepare" clients for mediation? We bring in stuffed dolls and tell then to point to where it hurts--then we bash an associate in the exact same spot with a stick that has the firm's logo engraved on it. Okay, so we don't do that anymore. We used to, though, before the days of things like "workers' compensation" and "human rights" got in the way.

    Actually, we "prepare" our clients by letting them know they'll be charged another $600 an hour for anywhere from four to eighteen hours as we all sit in a boardroom arguing over which is the final draft of subsection eighteen in the Revised Agreement. If I'm feeling particularly generous, I'll send a few associates to the client's office with those special gloves cage fighters wear and have them duke it out for the client's amusement.

    The bottom line is this: We are important. The client is important. Our time is money. So is theirs. All of this "mediation" nonsense would work itself out if we just took the rainsticks you mediators bring to your sessions and had associates beat each other to death with them.

    At least it would make things more entertaining. Now if you'll excuse me, I have to get back to billing. This little comment cost a client $250. I'll send you the bill.

  2. I responded to this commentor privately thanking him or her for the comments. As one of my earlier posts mentioned, lawyers have a spectrum of attitudes towards mediation -- from true believer to a belief that it undermines our system of justice.

    I plan to use this comment at the next conference of the Virginia Mediation Network, where I am giving a program on the Myths and Misrepresentations About Mediation.

  3. Mediation is the process where we and our spouse and a mediator enter into an agreement to mediate.

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