ADR CORNER
Managing Client Expectations in Mediation
AL LASORTE
One reason that mediations fail is parties arriving at mediation with unrealistic expectations about settlement terms . By educating their clients about the mediation process and frankly discussing the strengths and weaknesses of their cases with them , lawyers significantly increase the likelihood of reaching a mediated settlement .
Several reasons for clients ’ unrealistic mediation expectations come to mind . First , litigation is stressful . Whether as plaintiff or defendant , a pending suit can be the most stressful problem in a client ’ s life . Litigants with little court experience may be hoping the other side will just wave the white flag at mediation and give them the result they seek . This , of course , never happens in the real world .
Second , because lawyers generally like their clients and their cases , it ’ s understandable that some “ preaching to the choir ” occurs between lawyers and clients about their cases ’ strength . While expressions of case enthusiasm may engender clients ’ confidence in their lawyers , they can also make it harder for clients to objectively evaluate their cases ’ weak points , thereby overestimating their own cases and underestimating their opponents ’. This , in turn , makes compromise much harder to achieve . And compromise , of course , is the very heart of the mediation process .
Third , law firm ads on TV , radio , social media and billboards bragging about their clients ’ huge recoveries no doubt inflate expectations as to what plaintiffs can expect in their own cases . The same is true when clients hear anecdotally about all the money Uncle Louie or their nextdoor neighbor won in their lawsuits .
For mediation to succeed , it is crucial for all parties to objectively evaluate their cases ’ strengths and weaknesses , as well as outside issues such as collectibility , before entering the mediation room ( or , more likely these days , joining the Zoom conference ).
Granted , it ’ s not always easy for lawyers to be candid with clients about their cases ’ weaknesses . Will the client think the lawyer doesn ’ t believe in their case if she points out its flaws ? Will the client maybe start looking elsewhere ?
There is an obvious tension between a lawyer ’ s roles as advocate and as counselor . But clients need both . A frank discussion of a case ’ s bad points not only increases the likelihood of settlement at mediation , it also helps with expectations in the event the case ultimately has to be tried .
Clients also may not appreciate how outside variables can impact the result if the case must be tried , regardless of the case ’ s merits . Witnesses ’ memories fade ; judges are human , and sometimes make mistakes ; many areas of the law are unsettled and therefore uncertain ; appeals are expensive and difficult , and can take years to complete . Building an informed and realistic client requires all these issues be discussed and taken into account .
Managing client expectations requires certain steps before , and others during , mediation . Before mediation , be sure to incorporate discussion of the weaknesses in your client ’ s case , and the uncertainties in litigation in general , into your preparation regimen with the client . This can be done constructively , and doesn ’ t have to cause your client to doubt your enthusiasm , or your intention to give one hundred percent toward achieving the best possible result for them .
There are so many things that could go right , or wrong , in every lawsuit . Yet , I can ’ t tell you how many times , as a mediator , a party bragged to me that “ my lawyer says I ’ ve got a ninety percent chance to win . Why should I settle for less ?”
Clients with such high expectations are understandably reluctant to compromise meaningfully . A more candid premediation discussion with the client about what could go wrong would help them to understand the real risks , and to factor them into their evaluation of what a reasonable compromise would look like .
Ideally , your mediator will be someone the client considers authoritative . Retired judges have that gravitas which lends them credibility in a mediation setting . So do litigators with long careers in the particular area involved in the case . A mediator who has spent years trying similar cases will likely be seen by your client as an expert . With that expertise comes credibility as to the hurdles that the case presents .
During mediation , look to the mediator for assistance with an unrealistic client . In private caucuses , don ’ t hesitate to ask the mediator what problems they anticipate a trial will present .
Then , when the mediator moves to a different room , take advantage of this private time with your client to discuss the points the mediator just raised . This can be done constructively , and without sounding like you think the case is a loser . Remember , you are not just their trial lawyer , you are their counselor . So , counsel them !
In conclusion , successful mediation depends on your client becoming as objective as possible about the chances of success and failure . Frank discussion in advance of , and during , mediation will help your client develop reasonable expectations , in turn increasing the likelihood of settlement .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases , Mr . LaSorte now acts exclusively as mediator and expert witness through his own firm , Alfred A . LaSorte , Jr ., P . A . d / b / a LaSorte Mediation . ( www . LaSorteMediation . com ). Mr . LaSorte can be reached at ( 561 ) 286- 7994 and Al @ LaSorteMediation . com .
PBCBA BAR BULLETIN 6