This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.
Number 8: Failing to Prepare the Client and Not Having a Plan
How experienced is your client representative? If she’s an in-house counsel who has attended scores of mediations, there may not be a need for much preparation, other than to make sure she has the authority to settle and understands the dispute and the issues. But if the client has limited experience, and this is a “bet the business” case, counsel MUST spend time (and that means in person, not via email or calls) to explain the process and to try to manage the client’s expectations. I have had clients think that mediation was a trial and were furious at their counsel for not “trying” the case during the mediation. The definition of “settlement”: No one is happy. The real world applies. I have yet to walk into the room of a party after a few sessions and the client say, “I now realize I was wrong; here’s a check; you are the greatest mediator in the world.”
The goal of any mediation is not to “win” but to resolve the dispute. What can your client “live with?” Talk with the client before the mediation about all possible outcomes, which can include losing at trial (even though you are, of course, the best lawyer in the world). Have a plan going into a mediation, but anticipate the need for some flexibility in case something new is revealed by the opposition or the client, such as telling the lawyer at the mediation (it’s happened more than once), “By the way, I forgot to tell you that I fired our primary fact witness last week for theft, and she hates our guts.”
Be realistic about the consequences of not getting a deal, especially future legal fees, expenses and the impact on your client’s business (including how much time the client’s key employees are going to have to spend on the case). It is amazing how many times I ask a party/counsel what their best and worse case scenarios are, including estimated legal fees/expenses. I often get a blank look. I then have to estimate legal fees and expenses through trial, and no matter what the counsel’s hourly rate is, the final number can put a client on the floor.
To be clear, great mediation advocacy is not the most important element in getting a deal done; pre-mediation planning is equally important.