Posts Tagged ‘client preparation’

WHY ARE WE HERE?

The sine qua non for an effective mediation, as I’ve mentioned many times, is preparation. But good faith and flexibility by the parties, although not as important, are also integral to resolving cases.

One aspect of good faith by parties in mediations is that they shall be willing to consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good faith. In the mediation context, it means that the parties will be open to changing their minds; it is the polar opposite of rigidity.
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BREAKING AN IMPASSE AT MEDIATION

Occasionally, during a mediation, the discussions cease being fruitful because of unrealistic expectations, a disagreement over material facts, bad timing (incomplete discovery; an impending motion for summary judgment), the failure of one side to have sufficient settlement authority or the absence of an essential party. This message discusses ways of breaking an impasse when the expectations of the parties (usually over the monetary value of the case) are far apart.
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SUPPORT PEOPLE AT MEDIATIONS

I have mentioned before that the presence of supportive third persons at mediations can help youthful and inexperienced litigants deal with the novelty and uncertainty of the situation. I recall one instance where the mother of a plaintiff in his 40′s had common sense that her son clearly lacked. Such support also frees up attorneys to spend more time on the ever changing nature of the negotiations.
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TAKING CARE OF THE CLIENT AT MEDIATION

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.
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DISCUSSING MEDIATION AND SETTLEMENT WITH CLIENTS

Ethical standards exist in California as to various phases of mediation, including the duty to appear (messages 7 and 11), to maintain confidentiality (messages 11 and 17), to avoid conflicts of interest where multiple clients exist (Rule of Professional Conduct 3-310) and to provide notice and obtain waivers when aggregate settlements are involved (message 4). Left uncovered are whether attorneys have an obligation to advise clients about mediation opportunities and the scope of a client’s authority needed by an attorney to settle a matter. The first area is still open to debate in California; on the other hand, it is surprising that there is no specific ethical rule concerning the scope of a client’s consent to settle his or her case. (Note that Rule of Professional Conduct 3-510 only obligates attorneys to promptly communicate to their clients the amounts, terms and conditions of written and not oral settlement offers.)
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CLIENT PREPARATION

Intensive client preparation for mediation is frequently overlooked. While attorneys would not bring a client to a deposition or trial without going through the possible subject matter, questions and exhibits to be covered as well as discussing how to answer questions, the tactics and methods of opposing counsel and the policies of the trial judge, there seems to be a more relaxed attitude toward client preparation when mediation is concerned.
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