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 6: Failing to Be Intellectually Honest with the Mediator
Let’s get real. All mediators know that there is a game to be played if a settlement is to be reached. They understand there are client representatives in the caucus rooms who are paying their lawyers by the hour (normally) and expect their lawyers to be tough, hard-nosed bulldogs fighting (especially if there is bad blood between the parties) to bat down any arguments. However, that is often incompatible with meaningful settlement discussions which require, both for lawyers and clients, a realistic assessment of the dispute. Mediators understand that there is a fine line to be balanced by the mediator and the lawyers.
Mediators expect good, tough representation, but do not insult the mediator’s intelligence and knowledge about the subject matter of the dispute and the law. Beyond the initial presentation of your client’s position (in which you can certainly be a zealous advocate), mediators want frank and candid discussion of the strengths and weaknesses of the case. What are the best and worst case scenarios? What will be the future litigation expenses and legal fees? That can sometimes mean pulling the lawyers out of the room to have those frank discussions. Good lawyers want that from the mediator, even in front of their client. Because no matter how many times a lawyer may have told a client about the weaknesses in a case, there is something about having an experienced mediator explain to the client, face to face, the same thing and that all of the great lawyering in the world (of course) cannot change a set of facts or the law. Your job as counsel is not to show the mediator how smart you are and how you are going to kick the other side’s backside in court, but to see if there is a way to reach your client’s goal of getting the case resolved as efficiently as possible. Rare is the client who will willingly spend unlimited legal fees, allow the company’s key workers to spend hundreds of hours in discovery and depositions, and put his business into the hands of a third party, whether it’s a judge, arbitrator or jury. Sometimes it is not just about the money…but most of the time it is about the money.