DOs and DON'Ts for Attorneys Representing Clients in Mediation

By Argue, Matthew W. | Dispute Resolution Journal, August-October 2009 | Go to article overview

DOs and DON'Ts for Attorneys Representing Clients in Mediation


Argue, Matthew W., Dispute Resolution Journal


How do you know if mediation is appropriate for your client? How do you prepare yourself and your client for mediation? A mediator and former litigator offers 11 practical tips for attorneys who represent clients in mediation or are contemplating doing so.

There is no magic formula for a successful mediation. But there are basic factors that are key to effective mediation, such as the willingness to work with the other party in resolving a dispute and being open to what the other party and the mediator will bring to the table during the process. It is certainly to your advantage to familiarize your clients with the process. For attorneys who are new to mediation, there are countless "how to" books, articles, seminars and workshops that offer advocacy strategies. It also helps to get the insights of practitioners and mediators. This article is exactly that: practical tips based on my experience as a mediator.

1 THE TIMING OF MEDIATION IS CRITICAL. DON'T RUSH INTO MEDIATION WHEN THE PARTIES ARE TOO FAR APART, OR WITHOUT KNOWING THE STRENGTHS AND WEAKNESSES OF YOUR CLIENT'S CASE, OR WITHOUT HAVING CONDUCTED AN INVESTIGATION. ON THE OTHER HAND, DON'T WAIT TOO LONG EITHER.

Some people believe that when the parties are too far apart, having a mediation, even if it fails, is better than not having a mediation. The thinking goes that even a failed mediation brings the parties closer together. In reality, the opposite can be true. A party who is unprepared may give the wrong impression and lead the opponent to believe the case is not a strong one and actually lower the value of the case. This can cause problems in future negotiations when the parties are tied to an early assessment of the case.

Also, sometimes parties rush into mediation without an adequate investigation. Some even decide to mediate for the sole purpose of fact gathering and obtaining free discovery. But this is an abuse of the process. Mediation is not the place to learn new information about the case for the first time. Most mediators will stop the mediation if this occurs.

The best time to mediate is after you have conducted an investigation and know the strengths and weaknesses of each side's case and who is willing or unwilling to go to trial. Often this is after the parties have exchanged documents. In a complex case that is in litigation, it is after the parties have deposed one or two key witnesses. I believe that this can greatly enhance the likelihood of a successful mediation.

On the other hand, waiting too long to mediate can also be a problem. For example, it could mean that the parties have already driven up litigation costs and/or that they are too entrenched in their positions, making it difficult for them to settle. Mediating a case at the right time can contribute to a successful mediation.

A dispute with a firm and soon-approaching trial date generally has the best chance of success at mediation. Conversely, a case with no trial date or after a motion for summary adjudication (or some other dispositive motion) has been filed can make mediation unsuccessful because the parties are unwilling to negotiate in the face of uncertainty. A pre-mediation conference with the mediator can help the parties determine if the case is ready for mediation.

2 BEFORE MEDIATION, CONFER WITH YOUR CLIENT. YOU NEED TO PREPARE YOUR CLIENT FOR THE MEDIATION.

Would you be surprised to learn that many lawyers do not meet with the client before the mediation, or if they do meet, it is only briefly?

A common misperception is that a case can settle at mediation with little or no preparation. That is simply not true. The lack of preparation for mediation is the cause for many mediation failures. Thorough preparation is essential to give your client the best chance for settlement.

A successful mediation starts with a substantive pre-mediation meeting with your client at your office. Among other things, your client needs to understand the mediation process, including the concept of mediator neutrality, mediator style, and confidentiality. …

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