The attorney, the client and the mediator

Issue November/December 2016 By Brian R. Jerome

What makes mediation successful? To answer this, it is important to consider the roles and relationships between a lawyer, their client, and the mediator throughout the mediation process.

Many of us who are attorneys can recall our law school years being focused primarily on developing strong advocacy and trial skills, with little to no emphasis placed on developing negotiation skills to reach settlement. Litigators still rightly pride themselves on their trial and advocacy skills; it is this ability and willingness of an attorney to effectively try their case that creates the opportunity to reach more favorable pre-trial settlements. However, the primary focus of law practice is not trial but rather the preparation, negotiation, and settlement of cases, as less than three percent of cases actually go to trial.

Mediators are experts in the complex process of negotiation and settlement of disputes, skilled facilitators who orchestrate mediations like efficient business meetings. They create dynamic, structured, and respectful climates, and encourage all parties - as well as their counsel and/or insurers - to express themselves as needed so as to completely grasp all aspects of the conflict, material and human. S/he helps the parties focus on fundamental needs and priorities, seeking out and encouraging common ground toward the achievement of satisfactory settlement.

Effective mediators go beyond simple facilitation of the process, exploring the parties' positions, raising questions regarding these positions, conducting reality testing, and focusing the participants on the potential strengths and weaknesses of their case, preferably in a non-threatening and confidential manner. Capable mediators give honest feedback, cutting through posturing and argumentativeness to help parties get down to the business of resolution. Mediators help the parties develop an agenda, identify key interests, and create a realistic action plan.

An attorney's role in the mediation process is both as advocate and advisor to their client. It is the attorney who has prepared, investigated, discovered, and presented the case for the client. S/he advises the client when and if mediation is appropriate - whether at the beginning, before suit is filed - or during (or after) the discovery process is completed. In most, but not all cases, the attorney has engaged in a negotiation process to attempt settlement before formal mediation is commenced. It is the lawyer's role to explain to their client the nature of the process and what to expect during mediation. Further, the lawyer assists the client in making an informed choice of the mediator based upon the type of case, as well as the background and experience of the mediator.

Attorneys convey the benefits of mediation to their clients and prepare them so as to take full advantage of what mediation offers. In that regard, attorneys should determine directly from the mediator the process they employ, and should describe this process to the client. For example, counsel should review the expected initial joint session and the likely private caucuses thereafter. It is also important to review who will talk and when, who will take the lead role (if applicable), and how that may change as the mediation progresses.

The attorney advises the client on the substantive law relevant to the case and to the greatest extent possible, anticipates the arguments that the other side is likely to make at the session. A client's level of trust in their lawyer can be badly damaged if the client learns of potential risks for the first time at a mediation, such as that there is substantial risk of summary judgment before trial, or that the forecasted legal fees will be more than previously anticipated. The mediator will likely be discussing these issues and relevant risks in private caucuses, and the client is likely to hear similar points from the opponent during the course of the mediation. An attorney and well-prepared client are more likely to be convincing that their position is serious and reasoned, as opposed to mere posturing. These perceptions are often translated back to the opposing party through the mediator.

The client should also have the benefit of their lawyer's opinion of likely outcomes at trial and/or valuation of the case prior to the mediation. This enables the client to begin considering a range of acceptable outcomes as part of the process. For example, in a personal injury case the lawyer may advise the party of possible outcomes regarding the issue of liability, as well as reasonable and realistic ranges of a monetary judgment. The client should be strongly encouraged to come to the mediation with an open mind, avoiding bottom line positions.

It is important that clients understand the confidentiality of the mediation process, both under the terms of the written mediation agreement in effect, and by applicable statutes or laws, such as in Massachusetts, MGL c. 233, s.23c. The client should be informed how this confidentiality applies to both the initial joint session and, importantly, how the private discussions or caucuses with the mediator are themselves confidential. Confidentiality creates the foundation of the mediation process and allows parties and their counsel to speak openly at the session about their case and legitimate needs. Confidentiality allows the parties to make reasonable demands and offers with communications being protected from disclosure at trial should the matter not resolve. The more that a mediator can learn - in confidence - about the fundamental needs of the parties, the better they are able to foster a resolution that best satisfies everyone involved.

Principally, a mediation is for and about the parties. It is the client's case and they ultimately decide whether to accept settlement or not, after considering the advice of their counsel. Most parties who proceed to mediation seek to resolve their case at that session so as to avoid the continued anxiety, time, and expense of further litigation and the uncertainty involved in going to trial. Many parties feel that mediation is equivalent to their day in court, an opportunity at long last to express their arguments, perspectives, and feelings to both the opponent and their expert and impartial mediator.

Parties come to mediation with differing levels of experience, both as to litigation in general and the mediation process specifically. Some clients have never participated in a mediation. Others, such as insurers, may have significant experience in both litigation and the mediation process. Mediators assess these varying levels of experience and ensure that all parties equally understand the neutral's role and the mediation procedures to be employed. At the opening session the mediator should clearly set forth the procedures and background rules, explain the mediator's role and impartiality, and review mediation process confidentiality.

It is not uncommon for parties to come to mediation with intense emotions, anger dating back to the underlying event giving rise to the claim, or with frustration emerging from the claims and litigation process. These emotions need to be expressed before an aggrieved party can consider resolution.

Some attorneys limit their client's active engagement during the course of the mediation session. While in some cases this may be advisable (i.e. where the client has a tendency to speak about their case in a damaging manner, has excessive anger, and/or otherwise would disrupt the mediation process), counsel should nevertheless expect that a mediator will seek to engage the client in discussion, at least in private caucuses, to assess their views, emotions, needs, and priorities. It is important to afford a mediator this opportunity with the client to directly establish confidence, impartiality, and trust. A lawyer should consider advising the mediator in advance of the session of any client issues, such as intense emotions or unrealistic expectations; most mediators are happy to speak with counsel prior to the mediation session in this regard. Attorneys should consider the advantages of direct client participation as they advise as to their clients' level of involvement.

Attorneys understandably tend to make strong opening statements at mediation. Persuasive opening statements have the advantage of impressing the strength of their arguments, belief in their case, and preparedness to proceed to trial if mediation is not successful. Many clients expect strong advocacy from their attorney at mediation, however should be educated that resolution is more often achieved when adopting a more collaborative approach. Mediation is not a trial, and remarks made in joint session should not be inflammatory, belligerent, or personally offensive to the opponents or their representatives. Such statements often widen the rifts that exist between disputants. In such instances conciliators expend precious time during the session, in effect rehabilitating the offended party to a point where compromise and collaboration on their part is possible. At the very least, counsel should consider expressing good faith intentions during the joint session, and that it is their desire to avoid, if possible, further litigation and trial. Such representation often enhances negotiation outcomes.

Attorneys can face challenging clients with unrealistic expectations regarding their likelihood of success at trial and/or expected verdict ranges, even when duly counseled. In such cases, the mediation process allows clients a first-hand glimpse into the strengths of the opponent's case and gives a preview of how the evidence could play out at trial. The mediator guides parties through reality testing and risk analysis, with settlement often presenting more attractively than other alternatives. Mediators ask hard questions to all sides in the dispute. A practiced mediator, after having established rapport and having demonstrated themselves as being both impartial and equitable, can speak in private caucuses about the strengths and potential weaknesses of the case. Mediators must understand the thoughts and expectations of all parties, and rationally discuss the risks involved in proceeding to trial, existing judge or jury trends, the time and expense of further litigation, and the anxiety and frustration which too often accompany that path.

At times, the attorney has unrealistic expectations for their client's case. Being sure to respect and foster the important attorney/client relationship, a mediator may need to engage counsel similarly about their thoughts and expectations, providing them with a different perspective on potential risks and nuances of a given case.

Some attorneys are uncomfortable continuing to stress weaknesses in their case to the client or insurer, anticipating a negative response. In such cases it can be very powerful for the parties to hear directly from an unbiased mediator the shortcomings of the case so they can consider a more realistic evaluation.

This is why it is critical for all parties, as well as insurers with needed settlement authority, to attend the mediation. Even insurer participation by telephone is a poor second to actual mediation attendance. In such circumstances, the mediator's ability to speak to the insurer is limited and, too often, entirely restricted; to make the most of the process, the attorney should have his insurance client attend the session and work with the mediator directly.

Finally, participants are often anxious to depart the session when settlement is reached. They do not wish to remain for the processing of a signed settlement agreement, preferring to prepare and sign such an agreement in the following days. However, most mediators know of cases where the agreed upon settlement falls though, whether a party changes their mind or a misunderstanding arises as to previously agreed-upon terms. At the very least, there is the need for a minimal, written, signed, and legally binding settlement document at the end of every successful mediation. The attorney, the client, and the mediator have all worked hard and must ensure that the settlement is binding. It is critical to thoroughly sculpt the terms of the mediation settlement agreement and/or further releases while all parties are immediately available.

We hope all parties better understand the multifaceted roles and relationships that come into play during the mediation process. Dispute Resolution methods provide effective alternatives to the time, expense, frustration, and uncertainty of ongoing litigation.

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