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<xTITLE>The High Cost of Failing to Prepare for Mediation</xTITLE>

The High Cost of Failing to Prepare for Mediation

by Malcolm Sher
June 2012

First published in the San Francisco and Los Angeles Daily Journals on Feb 24, 2012. Reprinted and/or posted with the permission of Daily Journal Corporation.

Malcolm  Sher

In joint session, the plaintiff listens to his lawyer’s blistering opening presentation. One might expect him to be elated and emboldened, yet he looks down sheepishly avoiding the incredulous gaze of others in the room and hurriedly scribbles notes. He shakes his head, almost imperceptibly, looking at the mediator as if to say, “save me from what my lawyer is doing.”

Again in joint session, defense counsel in a sexual harassment/wrongful termination case, insinuates that he has some evidence that will devastate plaintiff’s case. It is a subtle suggestion that there is a “smoking gun.” Whilst not responding, the client’s hunched shoulders and folded arms, and the stunned look of his lawyer say it all.

It’s decision time in the mediation of a dispute between siblings involving inherited property. A tenant occupies the property but is behind on the rent. Mortgage payments on a loan reluctantly taken out by the siblings to renovate the property before renting it are delinquent. In private, the youngest sister, a college student, tells the mediator that she is fed up with the dispute and the stalemate and has decided to buy out her other two siblings’ interests. The mediator inquires whether this is really her goal. He asks if she knows what the loan balance is, how much is owed on property taxes, whether she, alone can qualify to take over the mortgage. Instead of a look of confidence, the mediator gets an open-mouthed blank stare as the attorney sits, quietly, saying nothing.

Each of the above scenarios illustrates a classic lack of preparation prior to the mediation session. In the first, the lawyer has not prepared the client. In the second, the client has not prepared the lawyer. In the third, neither the client nor the lawyer has prepared. Each is a recipe for disaster and each can be avoided.

Seasoned advocates know that the real negotiations begin the moment they enter the mediator’s conference room. Attorney and the client each have a role to play, but both have a common goal, to persuade the other parties and their representatives of the merits and settlement value of the case. Their behavior, tone of voice, even whether and how they exchange pleasantries will impact the rest of the day.

The attorney who exhibits no command of the facts, little understanding of the law, is offensive arrogant or argumentative in an opening statement, is sure to embarrass himself, his client and probably also those who are listening. The opening statement may be the only opportunity before trial to show the other side, their lawyers and insurance representatives how the advocate will “show up” to the judge or jury. But mediation is not trial. Blustering and “grandstanding” destroys credibility, especially if the alleged facts or applicable law are not clearly thought through and agreed with by the client. Astute observers will quickly pick up from the client’s body language that he and his lawyer are not on the same page.

As part of preparing the client for the mediation and outlining the structure of the day, counsel should consider allowing the client to review the proposed opening statement, so that both are satisfied that facts are accurately stated and the law supports the argument. If he is speaking in a joint session, rehearse what the client is going to say so that it compliments and supports, but does not contradict his attorney’s presentation. After all, it’s the client’s case; he “owns” the problem that needs to be resolved and is part of the team.

In the second scenario, the mediator, recognizing the obvious danger, suggests a short break. In private caucus, it becomes clear that the client has not been truthful with his counsel. Having denied in deposition that he ever sent salacious e-mails to co-workers, he now concedes that he “may have” sent some e-mails that “could be” characterized as inappropriate, but deleted them from his office computer. So what could the other side have on him? Prodded by the mediator, he admits failing to tell his attorney that he might still have them on his home laptop.

Even the best mediator “doesn’t know what he doesn’t know” and the same may be said for counsel. They know only what they are told, read or can extrapolate. Lawyers tell their clients that they need to know everything about the case and not to make value judgments about what is and is not important. Yet clients inadvertently or otherwise hide the ball from their own lawyers, often in contingency cases, where they have no financial risk.

Although the client is often Exhibit A, in my experience as a mediator, this scenario arises when the attorney fails to fully learn “who” the client is. Rather, he concentrates almost exclusively on the facts and the law, never probing the client’s psyche, motivations, or exploring whether he or she has a social conscience or a hidden agenda. In the scenario, ascertaining whether the client owned a laptop and insisting on inspecting it might have uncovered the truth. A cagey response might have provided grounds to decline representation initially, or justified withdrawing before everyone’s time and energy, and in a contingency fee situation, the lawyer’s money was wasted. Now, the best the mediator may be able to do is attempt to coax “nuisance” money in a “save face” resolution.

In the last scenario, the eldest sibling client and her attorney have obviously not prepared for the mediation. Counsel appears hopelessly out of his depth handling what is really a family partition action. Neither he nor his client has considered the client’s goals, her own emotional situation, economic realities or social needs. As the youngest, and most vulnerable of the siblings, all she wants to do is get on with her studies. In volunteering to buy the others’ interests, it is clear to the mediator that she has simply reacted in frustration to this out-of-control situation and her attorney’s inability to guide her towards a sensible solution. The mediator suddenly recall that counsel’s website shows that his practice focuses on personal injury and property damage cases, so why is the mediator not surprised?

Each of these scenarios illustrates the need for careful pre-mediation preparation. Mediation is not an event. It is a process. Like litigation or arbitration, it takes on a life of its own, yet must be choreographed, prepared for and even sometimes rehearsed. Learning what the client hopes to accomplish and what the client fears if there is no settlement is critical. How else can she be properly counseled about selecting from potential settlement proposals? Attorneys run the risk of embarrassing results, both in mediation and at trial, and especially in contingency cases where they fail to fully investigate the background of and stories told by clients who have no “skin in the game.” And, remember, the opening presentation can work wonders; messing it up can spoil everything.

Biography


Malcolm Sher, based in the San Francisco Bay Area, is a full time mediator who has resolved hundreds of real property, business, partnership, trust/estate, professional liability and employment cases, many of which involve significant emotional issues. In the majority of his cases, the disputants are from diverse cultural and ethnic backgrounds. A law graduate of the University of London, he is admitted in both California and the United Kingdom. For eleven years, he authored the Annual Supplement to CEB “Real Property Remedies and Damages” and now co-authors the ADR section of that treatise. 

 



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