Posts Tagged ‘client preparation’

Mediation Message No. 30


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.

Nonetheless, attorneys must be careful that support people do not become an impediment to settlement, especially if they do not have a stake in the outcome. Two examples come to mind. In a business dispute, the plaintiff brought along his accountant who could only see the outcome in fiscal terms. Although the nuances of a future trial, including its evidentiary and legal subtleties, were beyond his comprehension, he held undue sway over the plaintiff. It was only after the plaintiff’s lawyer politely excused the accountant that reality was introduced to the discussions and the case could be settled. In another instance, the unassuming plaintiff was accompanied by a dominant friend who naively saw herself as knowledgeable regarding the facts, the law and the value of the case. After several hours of negotiations, it became necessary to advise this well-intentioned but overbearing individual that her observations were unnecessary. Shortly, thereafter, this case also settled.

The lesson of these two instances is that attorneys should welcome support people but, at the same time, make certain that those persons in this group who are not spouses, parents, relatives or business associates of the parties have a clear understanding of their limited role in the mediation process.

Copyright, Michael D. Marcus, January 2006

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

Mediation Message No. 22


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.)

Notwithstanding this legal vacuum, the American Bar Association, Section of Litigation, Ethical Guidelines for Settlement Negotiations does provide some guidance on these two subjects. Regarding mediations, Guideline 3.1.1 states that “A lawyer should consider and should discuss with the client, promptly after retention in a dispute, and thereafter, possible alternatives to conventional litigation, including settlement.”

Guideline 3.2.1, regarding settlement terms, provides that “A lawyer can exercise broad and 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.” Compliance with either alternative (a) or (b) could be a problem if the client is not present at the mediation and the contemplated terms are numerous or complex. Accordingly, it is always preferable, besides being legally mandated by California Rule of Court 1634 and Los Angeles Superior Court Rule 12.15, that clients be physically present at mediations so that their awareness of the terms in and subsequent approval of settlements are unquestioned and unambiguous.

Copyright, Michael D. Marcus, January 2005

Mediation Message No. 1


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.

Although mediation is hardly comparable to depositions and trials, counsel can still benefit from advance work with the client, including a discussion of the facts and theory of the case and the goals of the particular mediation. An informed client will be more confident when facing the opposing party. Additionally, the mediator will make an assessment of the case, in part, by how the client responds to questions during private caucuses. Quite frequently, I have observed litigants to be confused or unknowledgeable about material facts or the purpose of the impending trial. On the other hand, a well prepared client presents a more credible witness. And a more credible witness is one of the factors a mediator will consider in evaluating the ultimate outcome and value of the case.

Copyright, Michael D. Marcus, copyright April 2003