Using Mediation to Let Your Client Have His “Day In Court”
Sometimes you’re going to have a client who wants his day in court. That client may be a plaintiff who says he’s interested in justice, not money. But unless your client is Taylor Swift, who sued someone for $1 for sexual misconduct, it’s unlikely that the client is truly not interested in a monetary award. Or that client may be a defendant who wants to be proven not liable for the allegations brought against her. Even for those clients, mediation may provide an opportunity for your client to have his day in court without having to endure the risks associated with trial.
To parse this further, I interviewed experienced mediator Bill Ratliff, who practices at Wallace, Jordan, Ratliff & Brandt, LLC, and runs a mediation blog at mediationinsights.com. Here are some of Bill’s thoughts on preparing your client for a successful mediation experience.
Giving Your Client His Day in Court via Successful Mediation
What are the best things a lawyer can do to get his client ready for mediation?
“I encourage attorneys to approach a mediation similar to a trial. Particularly, since roughly 80% of the cases that mediate settle. Preparation is the key. Attorneys should develop a strategy for the mediation. This will include opening demands/offers, who will speak and what will be said. I advise attorneys to prepare their clients for mediation as they would for trial. Explain the process to them, involve them in strategic decisions, and let them know what will be expected of them during the mediation and what they should expect from the process. Most Plaintiffs have never been involved in a mediation while many Defendants are familiar with the process and know what to expect.
“Explain to the clients that mediation is a process. For it to work, it usually must run its course. As parties invest time and energy in the process and assess the risk/reward for not settling, the money gap is hopefully narrowed and the parties are able to make a good decision at the end of the process.”
How can attorneys help the mediator best prepare for mediation?
Information is power. Educate the mediator. Do not assume the mediator knows anything other than what you have told him or her. As a mediator, I find that I am best able to help the parties that have best educated me. Attorneys should decide whether it would be helpful to meet or talk with the mediator by telephone or in person prior to the mediation. This can be done with or without the client present. Position statements or briefs filed in the case are excellent ways to educate the mediator.
How do you deal with parties who are not interested in participating in mediation?
“This is a common problem. Often one or more parties is not excited about being at the mediation. This can occur for any number of reasons. I have found that if the court has ordered the mediation, this often serves as an attitude adjustment for unexcited parties. At the start of mediation, I always remind parties that this is their best chance to settle the case.
“Unfortunately, some cases are mediated before they are ready. In these cases, we work hard to reach a resolution but I tell the parties that if we are unsuccessful, I will keep working the case after the mediation until the parties tell me to stop.”
For parties who want their “day in court, “what are strategies you use to help them see mediation as an opportunity?
“Mediation is an excellent substitute for a ‘day in court.’ During the mediation, I try to get the parties to participate and share in the process by having them express themselves. I have seen attorneys have their clients speak during opening statements and during caucuses. I think this is an excellent way for clients to vent and hopefully feel as if they have been heard. As the mediator, I try and be a good listener and ask questions of the parties to identify emotions of anger, frustration, hurt, or loss so that we can discuss those emotions during the process.
“I also encourage attorneys to make opening statements in the mediation. This gives the mediation the feel of a court proceeding. It also allows the client to see the attorney advocate for his or her position.”
What can a lawyer do to help you in the process of getting disinterested clients to engage in mediation?
“I find that clients often take their cue from their lawyer. If the lawyer embraces the mediation process, is engaged in it, and expresses confidence in the process, the client will usually buy into the process as well. Clients need to understand that there is risk in litigation. There are also costs in litigation. These costs may be monetary, emotional, and/or time. The cost, risk and reward analysis is largely what makes mediation work. Parties should be reminded that mediation is a voluntary process from which they can walk away at any time. However, it is also a proven process that works and when it works it results in an agreement the party has reached rather than a decision which is forced on the party like a verdict of the jury or decision of the Judge or arbitrator.”
As your get ready for your next mediation, keep these things in mind. Prepare yourself, your client, and your mediator in ways that lead to the greatest likelihood of success. Even clients who want their day in court can find that in a well-orchestrated mediation.
Photo by Ken Teegardin.