IN THE PROFESSION resolution with some measure of control over risk . The trade-off for such certainty is an acknowledgement that the client will forgo the best possible outcome while also avoiding the worst possible outcome at trial .
Emotionally , it is important to understand that a nightmarish chapter in your client ' s lives may be closing . When clients and their family have suffered unimaginable loss that results in litigation , it is common for them to conflate and intertwine their pursuit of “ justice ” with keeping a lost loved one alive . Moreover , in cases of sudden loss of life , such as with car wrecks or medical malpractice cases , the parties are dealing with grief , guilt , and a longing that may never be satisfied because they never got to say goodbye or resolve old conflict with loved ones taken too soon .
Therefore , it is necessary and compassionate , as their lawyer , to anticipate and address the notion that the litigation will one day end , either with a verdict or because of the mediation process . Taking the time to mentally prepare clients under such circumstances is helpful in getting them in the right frame of mind before the day of mediation .
In cases where there has not necessarily been a loss of life , the underlying lawsuit may have been so all-consuming that the clients have merged their entire identities with the pursuit of such litigation . This is especially true in cases where clients are still in physical pain or left with tangible souvenirs of such injuries by way of visible scarring , paralysis , or other physical disabilities . Here , as in cases where there has been loss of life , empathy can go a long way to help clients see that managed resolution by way of mediation is a more fruitful and rewarding alternative to trial , given that they will have some measure of control over the process .
There are many ways to broach these discussions . Give some thought to how to approach this issue before meditation . If you are not completely comfortable with these discussions , consider scheduling a pre-mediation conference with the neutral to address these issues with your client .
Experienced senior neutrals with reputations for handling such sensitive matters can be invaluable for purposes of advising attorneys prior to the day of mediation . As a mediator , I often talk to lawyers before the mediation to identify and address these kinds of issues . Alternatively , if time does not present such an opportunity before mediation , a private conference between the lawyer and neutral during caucus sessions on the day of mediation can be used to raise these concerns . Fortunately for attorneys , a good neutral will pick up on these common themes naturally and help your clients gracefully navigate these challenges with compassion and understanding .
Preparing Your Client for What to Expect at Mediation
People often have anxiety when they are thrust into an alien environment , especially when they did not bargain to have to be there in the first place . Take some time to reflect on what is important to know for clients coming to their first mediation . First , let them know who you selected to be the neutral and why . Give them access to the neutral ’ s online CV so they can familiarize themselves with whom you have entrusted to preside over their case . If you have worked with the neutral before , share a personal story about your past interactions to help establish some confidence with your client that you have done your best to ensure success .
Let clients know who will be present at the mediation in addition to the neutral and why . Explain that the opposing attorney , likely the same person who took the client ’ s deposition , will be joined by an insurance adjuster or corporate representative . Next , give the client a rundown as to the format of the day and give reasonable expectations that the mediation could last anywhere from four to seven hours and to plan to be there all day . Reassure clients that they will have their own room and let them know what the mediation facility is like . If the mediation is at Miles Mediation & Arbitration , for example , you and your client are assured of a hearty meal for lunch and access to snacks and beverages all day long .
Explain to clients that part of the process in a mediation is to be seen and evaluated .
As such , encourage them and help them understand the reasoning why they should dress appropriately and make themselves as presentable as possible in comfortable attire . It is very important to make a good first impression .
Reassure clients that they can bring along any family member or friends on whose advice they may value as much as their own lawyer ’ s advice . These members of a client ’ s entourage may be cumbersome for the lawyer to manage , but a confident and experienced neutral can assist in controlling them . When clients insist on having members of their inner circle present , the neutral can engage those wellintentioned “ armchair quarterbacks ” in a manner that makes them realize that the client ’ s attorney is the best person to be trusted for helping their friend or loved one in the legal arena . Handled the correct way , a neutral can take a big burden off the lawyer ’ s shoulders and instill confidence in both the legal team repping the client and the process of mediation .
Choosing a Mediator
An often-asked question regarding mediation is whether it is more important to have a subject matter expert to preside over the issues in your mediation or whether it is more important to have a neutral with high emotional intelligence ( EQ ). The answer I give comes in the form of a question to the lawyer posing such a question : “ When is the last time you relied on a neutral for black letter law ?” The answer is almost always , “ never .” So , if all things are equal , I would recommend taking a neutral with a higher EQ who can relate to people from all walks of life and understand the nuances of advocating in every room with all the parties to help exhaust efforts at resolution .
As with all things , however , it requires a balancing act . It is important to select a neutral who has “ been around the block ,” and practiced enough to demonstrate both the knowledge of handling cases but also the intricacies of taking cases to trial . However , a skilled neutral , with proper prep , can get up to speed on the pertinent issues with a well-drafted and thorough mediation report . Additionally , for matters
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