I have previously written about making efforts to ensure everyone attending the mediation is prepared the day of the mediation. The attorneys prepare by drafting confidential mediation statements. In order to draft a meaningful confidential mediation statement, counsel may be required to go through the file to ensure awareness of the pertinent information relevant to the case and mediation. Counsel relies upon the mediator to review the materials submitted to the mediator to ensure the mediator has a grasp of what will be discussed at mediation.
What about the clients attending mediation?
Think about this.
Have you ever taken your car in for a small repair or routine maintenance and learned much more significant work must be done than was anticipated? You go in anticipating spending a few hundred dollars and you learn the repair is going to be a thousand bucks or more? Simply put, you were not prepared for that.
Now, think about being in a mediation with a client who has an unrealistic expectation. Maybe there is a specific legal issue in the case that reduces the value or may significantly impact the outcome. Maybe there are facts of the case that do not support a client's position. This is does not only apply to plaintiffs. This equally applies to defendants.
I think it is critical for the parties to be aware of some, many, of the anticipated issues that may come up during a mediation. Maybe not all of them. Counsel may not be aware of all of them. But, this can include letting the client know how negotiations are typically handled at mediation, what the process looks like and, of course, discussing strengths and weaknesses of the case with the client prior to the mediation. In no way am I suggesting these types of conversations between counsel and the clients substitute any work that should be done by the mediator. But, would it be more productive for the client to hear the mediator mention some of the same points/strengths/weaknesses for the second or third time and reinforce what counsel has previously discussed with the client? Yes.
I can assure you that the client having an awareness of some of the critical issues and the process in advance of the mediation makes a difference. It helps to set expectations. It may help with getting to a successful agreement at mediation. It's like going to that repair shop knowing you are likely going to have a significant repair that is going to costs more than the routine maintenance. You are prepared for it. You have set your expectations, somewhat. And, you are prepared to listen, learn and make an informed decision.
Tommy Santel is a co-founding partner of Parkerson Santel PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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