DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART II
December 12, 2012 § 1 Comment
This is Part II of the series on Mediation by Don Dornan. Jr., of Biloxi.
Avoid Mediation When Your Client is not Seriously Interested in Resolution
If the facts of the case are such that you are certain to prevail, there is probably no reason to mediate, absent court order. Likewise, mediation will not likely succeed unless both parties are committed to the process. If your client is not committed to resolution, it will be difficult to achieve a successful settlement. When this occurs, the lawyer should not encourage mediation nor allow the opposing party to gain misplaced optimism that a mediated settlement is likely. Often, lawyers and their clients agree to mediation knowing that there is little chance of success. When this occurs, lawyer and client both run the risk of damaged credibility with the opposing lawyer and the mediator when the mediation proves fruitless.
Don’t be Afraid of Your Own Client
Before the mediation, all aspects of the mediation process should be explained to the client. The lawyer’s evaluation of the claims and defenses should be laid out for the client in a reality-based fashion. The client should be encouraged to listen closely to the lawyer’s assessment and to acknowledge the strengths and weaknesses of his case. At the same time, the pre-mediation meeting will afford the client an opportunity to express his feelings and ventilate, if necessary. The adroit lawyer will provide an empathetic ear and reinforce his confidence in the client while administering a dose of reality about the case.
The client can be the best piece of evidence in the attorney’s arsenal even though the mediation is informal and non-binding. A credible and impressive client at mediation is just that – a credible and impressive client. However, the opposite is also true. While it may not be tactful to broach this directly with the client, a poorly performing client is a factor which should be taken into account in the evaluation of the case.
It is the responsibility of the lawyer to explain the mediation process to the client. The goal here is to enhance the client’s ability to understand what is happening as the mediation unfolds. The client should be prepared to answer questions from the mediator clearly, concisely and without hesitation. The client should also be prepared to deal with an effective opposing attorney who addresses his opening remarks to the client rather than to the mediator. Here, the client’s body language and appearance are more important than any words which may be spoken.
Don’t be afraid to advise the client of the other party’s position and the fact that the client may feel threatened, criticized or intimidated during the joint session. Explain to the client that the opposing party will not agree with his position on disputed issues and that the client may be angered at the opposing lawyer’s position statements. Such statements should not be internalized nor allowed to create emotional barriers to compromise. Clients are better served when they are prepared in advance for negative information.
Prior to the mediation, explore with your client the process of negotiation. The idea that settlement requires negotiation and negotiation requires compromise should be explained and encouraged.
The Better Chancery Practice Blog 
I agree that mediation should be avoided when the client is not seriously interested in resolution. Certainly both sides must be committed to the process. However, I do not entirely agree that there is no reason to mediate if it is virtually certain your side will prevail. Aside from providing a forum to convince the other side of that certainty, mediation still has befits over litigation.
Even litigation with a certain outcome takes time and money, especially given the ability to appeal. Judgments obtained through litigation can be hard to enforce. Small concessions during mediation can result in earlier payment and agreed upon payment methods and schedules.- $90,000 in three annual installments over three years is often better than a judgment of $100,000 obtained only after three years of litigation.
Mediation can also, in some cases, repair relationships, especially if transformative mediation techniques are used. This can be important whenever some sort of continuing relationship with the other party is beneficial to our clients, e.g., manufacturer/parts supplier, contractor/subcontractor, retailer/distributor, employer/employee, husband/wife.
While many factors go into the viability and advisability of mediation when a litigated outcome is virtually certain, the certainty alone should not preclude serious consideration of mediation (or another form of ADR) for resolution of the dispute.