PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 5

ADR CORNER
Do You Do These Things Before and
After Your Mediations?
RICHARD LORD
I write from the perspective of having been
a civil trial mediator for the past 20 years.
Before the mediation, there are several
things, beyond explaining the process to
your client and preparing your summaries
and presentation, that you, as an attorney,
can do to increase the odds of success at
the mediation and of having a satisfied,
if not happy, client. Your client needs to
be involved in the identification of “the
good, the bad, and the ugly” of their case
so that a realistic understanding of your
limitations in working on their behalf can
be developed before the heat of the moment
of mediation arrives. It will allow them to
listen to and work with you through the
uncertainties and likely disappointment
and frustration that are often a part of
successful mediations. Part of this advance
work should include the running of various
scenarios and options along with the rough
probabilities so your client can understand
in advance why it may be wise to consider
an outcome far different than what they
may feel is their entitlement or you may
view as their best case. Your mediator
may well ask you your thoughts on the
probabilities and it may be better for your
client to have already heard it and to have
already gone through an analysis of the
law, facts of the case, and factors that may
lend credibility or support one way or the
other. If the first time they hear about it is
at the mediation, there is a greater risk that
they will not like the analysis when they
must be able to make decisions based upon
it. And telling them before the mediation
means they will be hearing it from you
and maybe the mediator for the second or
third time, thus increasing the likelihood
their decision-making will be consistent
with a rational process as opposed to
unreasonable expectations, emotion or
other motivator.
It is also important that your client truly
understand the multiple hats the litigator
wears when it comes to mediation. You
are both their advocate and their counselor,
and those two hats are starkly different. Too
many mediations see clients emboldened
by the opening statement of their able
advocate. You should tell your client that
you have two hats, one of the advocate
when you are speaking for them to the
other side; and the counselor hat when it’s
just you, them and perhaps the mediator in
the room. Tell them about those two hats
before the mediation so they are mentally
prepared for your gymnastics. Being clear
about that helps you avoid having your
client gain confidence from your opening
or rebuttal comments to the mediator in
caucus. Explain to them that your advocacy
is designed to maximize their outcome and
that your counseling is geared toward their
being smart and realistic. Remind them
that they should not take talk focused on
uncertainty and risks in caucus as being
inconsistent with your advocacy or as an
indication you are changing your mind.
Doing so will help them be a reasonable and
informed business partner with you in the
mediation and, when you reach settlement,
they won’t think you took them somewhere
out of weakness.
What should you do when the case does not
settle? What happens next is the typical
focus. Some responses are familiar such
as keeping an open mind and encouraging
your client to do so; considering who now
needs to be deposed, what new manner of
proposal should be made, what evidence
requested, motions filed or experts retained.
Your thoughts typically focus on what
needs to happen to get it settled or what
needs to be done to get ready for trial or
other adjudication. But there is something
I suggest you do that will help you in
future mediations for this client and if not,
certainly for others. Too few litigators do it. I
suggest that after each mediation that does
not result in settlement you try to come up
with at least three possible reasons for the
impasse or adjournment. That list should
influence your preparation for future
mediations. Perhaps not each thing you
identify was a cause of what happened, and
adjusting accordingly won’t guarantee that
your next mediation results in settlement,
but you will be building greater awareness
of factors you can address in advance of and
during each mediation going forward. By
actively deconstructing and learning about
the process each time, you will become a
more effective advocate for and counselor
to future clients in the mediation process.
To learn even more, we hope you’ll attend
the Mediation Committee’s presentation
“You Can Always Be a Better Negotiator” at
the Palm Beach County Bar Association’s
PBCBA BAR BULLETIN
5
Bench Bar Conference on March 20, 2020.
And for additional tips and resources
please visit the ADR committee page on
the Palm Beach County Bar Association’s
newly updated website available at www.
palmbeachbar.org/alternative-dispute-
resolution-committee.
Richard has been a mediator with
Upchurch, Watson, White & Max since
1999. Until 2016 he lived in Orlando and
worked predominantly in Central Florida.
Now, from the firm’s office in West Palm
Beach, he mediates throughout South
Florida as well. Richard is on the Council
of the American Bar Association’s Section
of Dispute Resolution, is a Fellow of the
American College of Civil Trial Mediators
(ACCTM) and is listed by the National
Association of Distinguished Neutrals. You
can learn more about him at https://www.
uww-adr.com/biography/richard-lord and
he can be reached through his assistant,
Norma Abreu, at [phone].
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