4 Things to say to Your Client Before Mediation

Written by Tanya Tate,

Imagine that you are asked by a doctor to come into his office and listen all day to two well-educated medical experts emphatically espousing virtually opposite ways of treating the same condition. And imagine that you have no medical experience and have never before even talked to a doctor. And finally, imagine that at the end of the day, you are asked to digest a full day’s worth of medical discussions and then definitively advise the doctor as to how to treat the condition. It would seem overwhelming. Yet, clients are operating in a world that is foreign to them and feel completely outside of the comfort zone.

There are things you can do as the attorney, however, to make them feel comfortable and maximize your chances of reaching a successful solution.

1. Ignorance is NOT Bliss.

Caucuses, bracketing, midpoints and legal terms are all very familiar to those of us who mediate frequently. However, your client likely has no idea what this means or what to expect at mediation. It is not uncommon for parties to come to mediation completely unaware that they may have to be in the same room as the opposing party. Discussing logistics and describing to your client the typical flow of the mediation day will help them feel more comfortable and confident on mediation day; which is more likely to lead to a resolution.

2. Patience. Patience. Patience.

Prepare your client for the potential lengthiness of the mediation and the sometimes seemingly stagnant pace. As attorneys, we all know that this is part of the process. But oftentimes, clients don’t. It’s a marathon, not a race, and patience will pay off. So, prepare them to settle in, bring a book and make a day of it.

3. Agree to Disagree.

Prepare your client for the fact that they will inevitably hear things at the mediation that they don’t like or agree with. And for that matter, you will hear things you don’t agree with. But it is your job as their attorney, to prepare them for the other side’s argument. If this is explained to them in advance, and if you walk them through the opposing side’s position before mediation, they are much less likely to get agitated during the mediation when the mediator brings up the various arguments asserted by the opposition. They will have heard it all in advance and be less likely to be fueled by emotion as they engage in the process.

4. Money is Money.

While the parties may not like the offers that are coming from the other room, if defendants are increasing their offers and plaintiffs decreasing their demands, progress is being made. So often mediators hear parties say, “that is insulting” when presented with the latest offer or demand. Moving closer to a resolution, even if in small increments, should not be deemed as insulting. Try to steer your clients away from that mindset if possible.


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