Monday, June 17, 2013

Representing a Client in Mediation: Pre-Mediation Counseling

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself.

Counseling the Client about Mediation
In counseling a client about mediation, a lawyer may wish to cover the following topics:

  • The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute.
  • The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement. 
  • That mediation creates no legal precedent.
  • Whether the case is “ripe” for mediation.
  • Whether the client has sufficient information or discovery to make informed decisions at the mediation.
  • Whether the parties should request a pre-mediation conference.
  • The scope of confidentiality provided by rule or statute and any additional expectations about confidentiality that the parties may need to cover in the agreement to mediate.
  • Whether the parties need a standstill agreement.
  • The choice of mediator.
  • The location of the mediation.
  • Who should attend the mediation and whether the client should bring an expert witness, a fact witness, other supporters, or anyone else.
  • What pleadings, demonstrative evidence, or other information the client or lawyer should bring.
  • The stages of the mediation process.
  • The distinction in the role of a mediator compared to a judge or arbitrator.
  • The techniques mediators may use.
  • When mediation may not be appropriate for the situation because of domestic abuse, extreme imbalances in bargaining capacity, or when the client is impaired by drugs or alcohol.
  • That mediation is a voluntary process that the client may terminate at any time.
The lawyer should take time to ensure that the client is ready for a process that may be new to him or her and has adjusted his or her expectations about the process to ensure successful participation in it.

This excerpt from an article first appeared in 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.

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