Preparing Your Client
More likely than not, unless an experienced claims adjuster attends on behalf of one of the parties, your client will have no experience in the mediation process and know little about it. Therefore, explain to your client what mediation is, and is not, and how the process works.
You should explain that mediation involves compromise where neither side gets everything it wants. Discuss both the strengths and weaknesses of your client’s case. As the mediator will likely ask you about these in a private caucus, you don’t want your client to hear you comment on weaknesses for the first time there.
Make sure your client understands that a mediation is not a trial and that the mediator is not a judge who makes a decision. Tell your client that because mediation is an informal process in which a compromise that is in their best interest is being sought, your presentation will be less adversarial than it would be at trial.
Explain that there typically will be a joint session where the mediator will talk about the process and how it will proceed which will be followed by each side making presentations. Explain that following this joint session there will be private meetings with the mediator in which confidential discussions can be held and settlement offers and counter-offers exchanged through the mediator.
It is important to emphasize that both the initial offers and counter-offers will not be realistic; that your client should not get angry or upset about this. Tell your client that patience will be required and that the mediation will likely go on for several hours and, possibly, the entire day.
Tell your client that it will not be necessary for him or her to say anything at the joint session. Nor will they be cross-examined. But if your client wants to say something in the joint session, and you believe your client should, discuss what could help in terms of both content and demeanor. Have the same discussion with respect to the private caucuses.
Explain to your client why you believe mediation is a good idea. This includes:
- Control -- It allows them to control their own destiny, not leave it up to strangers on a jury.
- Certainty -- What will happen at trial or on appeal is never certain even where you have a strong case. Additionally, a good result may be appealed and overturned with the need to retry the case.
- Speed -- If successful, mediation will get their case resolved sooner rather than later. They will not have to wait for a trial date to be scheduled, nor the results of any appeal that may be made.
- Costs -- It reduces total costs associated with further case preparation, trial and possible appeal.
- Confidentiality -- Matters that are desired to be kept private will not be subject to public disclosure as they would in a trial open to the public and the press.
- For plaintiffs, the time value of money -- Having the case resolved sooner rather than later results in money being available almost immediately and not having to wait until after a trial or the result of an appeal.
Your client will likely hear the mediator say many of the things discussed above. Having heard them first from you can inspire confidence in your experience and ability.