Clients who are new to mediation may think it is not important, or is rude, to try to tell their own advocates what they expect them to do to prepare for mediation. It is, after all, the lawyer’s responsibility to do their job and to do it well. However, lawyers don’t always have the perspective to fully understand what that entails.
Since you as the client are the one paying the bill – and the one who bears the consequences of a failed mediation in terms of trial risks and further litigation expenses – and since mediation is a client-directed process, it is entirely appropriate for you to make sure the preparation for mediation is handled to your satisfaction.
Here are three preparation tips to keep in mind to make the mediation session more valuable:
1) It is your advocate’s responsibility to determine the adequacy of the person with authority who will attend for the other side.
Your advocate should inquire of the other side about who will attend the mediation and determine if they are satisfied that person will have the authority to make a deal. If the response is that person will attend by telephone, you should consider whether you want to go forward without the decision-maker present in person. Likewise, if the person is not at the level that they can make an independent decision without consulting someone remotely who has “the authority,” perhaps requesting that ultimate decision-maker to attend the mediation will be in your best interests. Failure to have an ultimate decision-maker personally present is one of the reasons cited most frequently by mediators for failure of the mediation process.
2) Is your lawyer preparing the mediation brief and attachments with the same seriousness they would prepare a dispositive motion?
Lawyers take quite seriously the filing of (or responding to) a Summary Judgment Motion because such motions can end the case or severely limit the scope of relief. Your Mediation Submission to the mediator should receive the same level of attention, but too frequently it does not. Since 80% to 90% of litigated disputes terminate at mediation or another point prior to trial, that justifies the extra effort for a well-reasoned and complete submission outlining your position. The attachments, including deposition abstracts, highlighted contracts and textual material, and photographs bearing legends and arrows explaining what is to be seen and appreciated, are all helpful to the mediator. Consider asking for a draft of the submission 10 days or so in advance of the mediation. This serves the purposes of seeing if you approve of the quality and that, once approved, it will be in the mediator’s hands soon enough for them to be prepared to do a good job.
3) Have a meeting with your advocate at least a week ahead of the mediation.
By meeting with your counsel you can see what work has been done, get advice on what to expect from the process and decide on the goals for the mediation. It is important to understand the costs and risks of further litigation and trial. Some lawyers will prepare a budget to go forward and prepare a “litigation risk analysis” to help you decide what you should be prepared to take or spend to resolve the matter at the end of the mediation session.
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It is your case and this is your mediation – so telling your lawyer what you expect and auditing the preparation ensures that you are getting good representation and all the services for which you are paying.
© 2017 Jerry Palmer
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