Although we all know that mediation is an alternative dispute resolution process, I think we tend to forget sometimes that while us litigators are likely very familiar with the process, our clients may have little idea of what to expect. Therefore, in order to give yourself the best chance of success, it should be every bit as important to prepare your client for mediation as it is to prepare them for deposition or trial. So, spend some time educating your client about the process.
1. Introduction
Tell your client that at the outset the mediator will take time to introduce himself and explain the goals and rules of the mediation. Personally, I like to take this opportunity to explain what the process will look like for the rest of the day, and I encourage the parties to stick with it and trust the process and not get upset or discouraged because it might seem like progress is slow or even non-existent.
2. Joint Discussions
It used to be that the mediation would always begin with a joint session in the same room, where each side could make a statement in front of the other, with the mediator making a few comments, before the parties retreated to their private rooms. Lately, the joint session has fallen out of favor. I think you should discuss with your client whether he/she feels the need to express his/her views to the other side. It might function as a sort of catharsis. With sophisticated business clients, perhaps a joint session is not necessary.
3. Private Caucuses
The private meetings are the heart of the mediation. It is here where the mediator really does his/her work, exploring the strengths and weaknesses of each side’s case with candor and honesty. Let the client know that there are multiple approaches, whereby the parties might simply exchange numbers, or perhaps they will negotiate within a prescribed range. There are a variety of approaches. But, your client should also be aware that the process can slow down quite a bit at this stage, and sometimes progress will seem non-existent. Try to prepare them to not get discouraged.
4. Closure
If an agreement in principle is reached, the mediator will likely put the main provisions in writing so as to bind the parties.
If no agreement has been reached, the client should understand that there are still options- maybe a mediator’s proposal, or follow up sessions or phone call. Leaving a mediation without a settlement is not necessarily the end of the game.
