Mediation Message No. 29


Every attorney wants a satisfied client at the end of a mediation. But, like every other part of the litigation process, that result is the product of diligent attention to the client’s needs and rights and not just happenstance. The following are some suggestions on how to achieve such bliss:

• Prepare the Client for the Mediation – Tell the client how a mediation is conducted and what its goals are. Discuss what you shall try to achieve realistically at the mediation. Determine whether or not the client shall speak or answer your questions at a joint caucus and, if so, go over those statements with the client. Determine if the client needs a support person to be present, especially if the underlying facts are traumatic. And, because the mediation can be lengthy, advise the client to bring something to read or occupy his or her time during the lulls when the mediator is not with you. Lastly, advise the client about the date, time and location of the mediation, including where to park.

• Keep the Client Informed about All Developments – During the mediation process, lawyers and mediators often talk outside the presence of the clients and, even when the client is present, the conversation can be difficult to follow, especially if it’s about legal rather than factual issues. For that reason, summarize for the client what has just been discussed, whether or not it took place in or outside of the client’s presence.

• Make Certain that the Client is in Control of the Settlement Terms – “A lawyer can exercise broad general authority from a client to pursue a settlement if the client grants such authority, but a lawyer must not enter into a final settlement agreement unless either (a) all of the agreement’s terms unquestionably fall within the scope of that authority, or (b) the client specifically consents to the agreement.” (ABA Section of Litigation, Ethical Guidelines for Settlement Negotiations 3.2.1; however, a defendant client need not be consulted about the settlement or its terms if the client is covered fully under an insurance policy that gives the insurer the right to settle the matter without the insured’s consent. [Fiege v. Cooke, et al. (2005) 125 Cal.App.4th 1350.)

Copyright, Michael D. Marcus, December 2005

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