JAMS ADR Blog by Chris Poole
Today’s post comes from Joel M. Grossman, Esq., who has more than 30 years as a neutral, litigator, labor negotiator and in-house counsel overseeing complex employment and entertainment disputes.
As with most other things in life, a lawyer’s success in mediation will usually be dependent on his or her preparation. This also means more than simply preparing a presentation for the mediator; it also means preparing your client for what to expect at the mediation. The more your client knows about what will happen at the mediation, the higher the likelihood that the matter will settle.
If this will be your client’s first mediation, he or she needs to know not only how mediation works, but also what the mediator’s role will be. First, the client needs to understand that mediation is generally a back-and-forth bargaining process. If the client is the plaintiff, he or she will start the bargaining when making an opening demand. Of course, you will strategize with client about the amount of the opening demand, and be sure to advise the client that this starting number may have no relation at all to the hoped-for final settlement number. A client who doesn’t fully understand that the opening demand may be far from the end result could be very disappointed as the day wears on.
Just as the plaintiff must be prepared for the back-and-forth negotiation, so too the defendant must be aware that a lowball opening offer is not necessarily anywhere close to the final amount that will be paid to settle the case. Once again, it is critical for you to emphasize the bargaining nature of mediation so that the client doesn’t fall in love with the opening number. You will probably discuss with your client the “bottom line,” i.e. the most you will pay to resolve the case at mediation. Sometimes it will be necessary to pay something more than the predetermined bottom line to get the matter resolved, and the client needs to be flexible. When all the facts are considered, including ongoing attorney’s fees, business inconvenience, and potential risk at trial, a larger payment may well be merited.
In order to maximize the effectiveness of mediation, the client needs to know not only how the process works but also what role the mediator plays. For example, mediators often play “devil’s advocate,” questioning the position of each side. If your client doesn’t know this is coming, he or she can be both surprised and offended by the mediator, who might look like he or she is working for the other side. Similarly, if your client is the plaintiff, she should know in advance that the mediator will continually ask her to lower her demand, and if she’s the defendant the meditator will keep asking for more money. That’s just how it works, and the more the client knows about the process, the more likely it is that the matter will settle.
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