As young lawyers, we quickly learned the importance of preparation. I remember an old lawyer telling me that preparation can go a long way toward making up for a lack of experience or knowledge. Our appreciation of the value of preparation only continues as we age, even after we’ve gained that experience and knowledge. How many times have we completed something and wished we had spent less time preparing? None. But do you sufficiently prepare your client for mediation as part of your preparations?
These days, most litigators are likely experienced with mediation. But what we tend to forget is how new and foreign this concept and this process is to our clients. The time spent preparing a client for mediation is invaluable and can make the difference between achieving a settlement and not.
Here are some tips to help you prepare your client for mediation.
1. Explain the process.
Don’t just give your client a cursory overview.
Explain the applicable rules or the subject agreement. In particular, address the significance of confidentiality.
Explain how the process will work – joint sessions, caucuses, etc.
Discuss the role of the mediator – a third-party neutral who is a facilitator, not an adjudicator.
Talk about (or review) the benefits of mediation – private, confidential, flexible, casual, etc.
Emphasize the importance of letting the process play out, which will require patience.
Don’t let your client make plans assuming how long the mediation will last. Many potential settlements never happen because someone’s schedule prevented the process.
2. Review your case analysis.
Realistically, what’s likely to happen if the case doesn’t settle? What are the unknowns? What are the risks? What are the advantages of resolution now? Review the positive and negative factors affecting the case’s value. Explore your client’s valuation and the basis for it. If your client has unreasonable expectations, it is better to learn about them ahead of time (so you can share that with the mediator). Hopefully, you will cover all this during the mediation session, but if it has been discussed ahead of time it is more likely to be effective.
3. Establish some goals.
One of the beauties of a settlement is the flexibility that it provides. The parties can be much more creative than a court. They can include items completely irrelevant and immaterial to the legal case in their settlement agreement.
Explore with your client what he or she would like to accomplish with a settlement. Help them prioritize their wish list. What’s really important? It’s best not to set a fixed, hard settlement number (“I won’t take less than X” or “I won’t pay more than X”). An aspirational goal is fine. A range is even better. After all, you need to know where you are headed in your negotiations. But there may well be things that happen during the negotiations which affect the evaluation. It’s also important to learn what cannot be part of a settlement or what is unacceptable and why.
4. Prepare a negotiation strategy.
Principled negotiations are more likely to lead to positive movement and thus a settlement. Principled offers have some basis. Perhaps they are tied to something outside of the case. Or maybe they are the product of some formula and a calculation. Regardless, principled offers or demands give the other side something to bargain with. Mapping some of these out ahead of time is helpful.