It is not a secret that the key element in successful trial practice is preparation. Lawyers go to great lengths to meticulously prepare every aspect of a trial knowing that such preparation enhances the likelihood of success. But many of these attorneys do not put the same effort into preparing for mediation. With most cases now being mediated, it is difficult to understand this lack of preparation for a process that resolves many more cases than those that are actually tried.
An important part of the preparation for mediation is preparing the client. A lawyer must carefully prepare a client for trial, not only on the facts and theories of the case, but upon the practices and procedure the client may encounter as the trial goes forward. The lawyer will explain to the client the functions of the participants—the judge, the jury, etc. He will explain the role and purpose of opening statements, the nature of rulings on evidence, and other events that may occur during the trial.
Similarly, the client needs to be prepared for the process of mediation. A full explanation of what may occur during the mediation will help the client to be comfortable throughout and will aid the potential for an acceptable resolution of the issues.
A distress point can come very early in the mediation process. A plaintiff’s first demand may be “read my prayer” or for an amount far greater than the case is worth. Or a defendant offers only an amount far less than the case is worth. Lawyers (and mediators) are not turned off by such an occurrence—most have experienced it before—but this can be disconcerting and discouraging to the client. Likewise, the back-and-forth haggling towards a settlement can be very off-putting. The effect of such events can be lessened if the client knows that they may occur.
Another distress point can come when the mediator—this supposed “neutral”--begins to discount and/or challenge points upon which the client’s case rests. And—even worse—emphasizes the quality of the opponent’s position. The client needs to understand that the same thing is happening to the opponent in the other conference room. It needs to be understood that a good mediator is “beating up” on the other guy too.
So, preparing for mediation requires not only a mastery of the law and facts of the matter at hand, it must also include a thorough preparation of the client. A well prepared case and client is as essential in mediation as it is in trial.
For mediation services or questions about mediation, contact David Pomeroy at (405) 235-8721.
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Posted on Mon, April 11, 2016
by Andrews Davis filed under