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By the time mediation rolls around, the parties are typically fairly far into the case. So it is rare when a true surprise gets uncorked at mediation. But what do you do when it happens to you?
I had the situation come up in a recent mediation. The two parties had wildly different ideas of what the case was worth, and when we got to the private caucuses I discovered why: they were evaluating different cases. One side was missing a critical fact that radically changed the value of the case.
Nobody wants to be blindsided at mediation, but the plaintiff’s lawyer in this case handled the situation extremely well. Here are some of the techniques he used:
1. Slow down the pace of the mediation.
Do not feel pressured to turn your response around in just a few minutes. Let your mediator know you need some space to talk the news over with your client, and take your time getting back to the other side. Slowing the mediation down gives you the chance to talk to your client and to think.
2. Be honest with your client.
When it comes to explaining what the news means to your client, be gentle but honest. Remember that your client is less familiar with the legal system than you are. If you are too vague, he or she may not understand what you are saying. Your client wants to make a good decision, and so he needs to know what the new information will mean, in practical and direct terms, for his case.
3. Be Flexible and Reevaluate.
You have been living with one view of the case for a long time, and swapping that view for a new one is tough. You are going to have to reevaluate the case, which is going to require a flexibility that does not always come easily to us as lawyers.
But unless you are missing information, you should not walk away from the mediation. It makes sense to slow the mediation down, but this mediation, right now, is still your best chance for getting the case finished.
4. Remember the big picture.
Your job is to represent your client to the best of your ability, and that includes evaluating the case as it actually exists, not as the client wishes it could be. Bad though the surprise may be, at least you learned the facts before trial. By then, it would have been too late to counter the facts or to factor them into your evaluation of the case value.
In my case last week, I got to work with a plaintiff’s lawyer who was flexible enough to take these four steps — and he walked away with a settlement and a very satisfied client.