After 16 years as a Texas civil district judge and having mediated cases for 30 years — first as a litigator and now as a full-time mediator — I know that the cases most likely to settle are the ones where lawyers expend the effort to educate clients about the process, not just the numbers. Many attorneys and clients simply show up and hope the mediator magically makes a deal for them. That’s a mistake.
Mediation is not simply about presenting arguments and numbers. It’s about managing expectations and preempting emotions before you get to the conference room. When mediations fall apart, it’s often because clients misunderstand how negotiation unfolds. Here’s a closer look at why diligently paying the groundwork with clients improves your chance of success at mediation — and ideas for executing this.
The Key is Understanding Mediation’s Purpose
Mediation isn’t trial. It serves a different purpose. Mediation is a negotiation facilitated by a neutral, not a decision by a judge. No one in the room will “win” an argument. The other side is typically posturing anyway and won’t admit defeat even if the other side’s arguments are bulletproof. The goal is not to prove who is right, but to determine whether the dispute can be resolved at a number both sides can live with. Parties who approach mediation expecting validation or vindication will struggle.
Familiarize Your Client with the Process
So, when preparing clients, help them understand it’s a day-long process. Where you begin often has little to do with where you end. The parties usually have vastly different valuations of the case. Your client, if not prepared, will arrive focused only on the strengths of his or her case. Or, if you represent an insurer, the insurer will be focused on risk, exposure, and weaknesses in proof (for both sides). Your client should expect to hear the other side’s best arguments about liability, damages, credibility, and the uncertainties of trial, but remain focused on the true goal.
To the uninitiated client, these arguments may feel like a slap in the face on a bitter cold morning. Your client is likely to respond with anger and may threaten to walk out. But these discussions, and these feelings, are part of the negotiation process. You must inoculate your client; you must warn your client well ahead of the mediation that these are not personal attacks. They’re the other side doing his or her job.
In a productive mediation, reasonable people can evaluate the same case very differently. Moreover, it requires understanding that negotiation involves posturing, probing for weakness, and incremental offers to see what each side’s risk threshold may be.
Explain How Opening Offers Work
Opening offers can often be quite jarring to the novice client. Right off the bat, after the pleasantries are exchanged, the mediator will return from the other conference room with an opening offer. Your client must be steeled to the fact that these are strategic and reflect positioning rather than real valuation (usually). If your client (understandably) interprets this as an insult, he or she may disengage emotionally before the negotiation even begins.
So, your job as the lawyer is to predict this for your client well before mediation and make him or her promise to focus on movement over the better part of the day. I can’t tell you how many times I’ve told a client that nothing good happens until after lunch anyway. The important question is not where the negotiation starts, but whether the gap begins to close.
Prepare Your Client for Day’s Demands
Again, mediation is a process. It’s both mental and physical. The pace of mediation can feel foreign. A typical day involves periods of active discussion, challenges to the client’s point of view, and long stretches while the mediator meets with the other side. This is interspersed with moments of anger and sometimes, acceptance. Patience is essential.
Emotions are inevitable. Your client will feel personally attacked. Clients will question your judgment or efficacy. Fatigue sets in during a long day. These reactions are normal and expected. But they also make it harder to think clearly. Let your client know that you will be talking to him or her about solely making a business decision at the end of the day.
Remind your client of that foundational work you did to bring them back to reality. At the same time, if you are too “business-like” they may view you as “playing for the other team.” It’s a delicate balance. You must root for your client and share his or her anger and frustration just enough — yet maintain the focus on the business decision at hand.
Keep the Focus on the Business Decision
How do you direct your client to a business decision? You talk about certainty versus risk. About money now versus money (maybe) later. About the stress of trial, the continued life disruption of litigation, and about closure. What is your client’s priority? Is he or she intent on rolling the dice? The best lawyers manage those expectations with repeated discussions about both the good and bad, gaining trust, so that the client will actually take the good advice you’re providing.
Confirm the Parties Have Authority to Settle
Finally, mediation usually doesn’t work if the parties must translate the events of the day, the emotions and the counterarguments, to someone who isn’t present and enmeshed in the hour-by-hour drama. New information may emerge during the day that affects the mediation.
Because of this, parties should come to mediation with authority and flexibility to make decisions without having to call a decision-maker. The cases most likely to resolve are those where decision-makers are present and prepared to engage in meaningful negotiation.
After years of observing both mediations and trials, it’s clear that the cases that settle are those with parties who are educated about the process, not just winning legal arguments. They come armed with a realistic understanding of negotiation itself.
When lawyers skillfully manage expectations so that their clients remain patient with the process, both sides can focus on practical outcomes rather than emotional reactions. When this happens, mediations bear fruit, and both sides walk away slightly unhappy, but with the dispute behind them. This is almost always better, as we like to say, than having “twelve strangers who don’t want to be there” decide their fate at trial.
Hon. Mike Engelhart is a mediator and arbitrator with Miles Mediation & Arbitration in Houston.