By Mediator Lee Wallace
You can probably picture that lawyer right now. The one who wrote that brief filled with lies about your client (or you), insulted you in front of your client, sent offensive letters, refused to return your phone calls, and promised discovery responses that never appeared. And no surprise, the lawyer represents that opposing party — the one who lied at deposition, hid documents, and blamed your client. The more you think about what they have put your client and you through, the more you look forward to evening the score at trial.
Head-wise, you can admit that you ought to think about settling the case. But how could you possibly settle with them?! How could you lay down arms long enough to put on your mediation hat, even for a day?
Six Steps to Take
Here are six steps you can take to help you successfully mediate a case, even when the litigation has become contentious and bitter.
1. Focus on Your Goal.
Settlements have huge advantages over trial. They are faster, cheaper, and far less stressful. Focus on the fact that you are going to mediation because you want to represent your client well, which means you have to thoroughly explore settling this case, just like you would any other.
2. Write Down the Reasons to Settle.
To help you focus on how to represent your client at mediation, write out the reasons that settlement would benefit your client. Don’t just tick off a list of goals in your head; when you really hate the other side, you have got to put more effort into the process than you normally would. Is the client trying to sell his company, or close out the books at the end of the year? Would trial be especially hard on your anxious client? Does your client need money for an upcoming surgery? Write down the factors that would make settlement an attractive option for your client.
3. Get Your Client on Board.
If your client shares your dislike of the other side, you need to run through the same process with your client that you do with yourself. Show the client your list of reasons to settle the case. Get the client involved in thinking of reasons settlement might be beneficial.
4. Talk to Your Mediator in Advance.
As the mediator, I would like to know in advance if the case has become particularly bitter. At the opening conference, I can arrange the seating to help the parties adopt a collaborative mindset. If the problem is severe, I may even skip the conference altogether and move straight into the private caucuses. Usually the opening conference can increase the chances of settlement, but if it would be counterproductive in your case, we do not have to have one.
5. Separate and conquer.
Even if you thoroughly dislike the other side, you do not have to endure a day of misery just to mediate the case. When the two sides do not get along, it makes sense to keep them apart as much as possible. The mediator can bear the messages back and forth, and present each side’s arguments to the other.
6. Choose the mediation participants wisely.
When you plan for mediation, think through the people you will have present for your side. Is the client’s wife a calming influence? Make sure she is there. Is the regular corporate rep a hothead? Suggest the company send the unflappable in-house counsel instead. By selecting the participants, you can minimize the drama and increase the chances of settlement.
And if you need motivation, remember this: if you dread the idea of spending the entire mediation day with that lawyer and that client, the alternative is spending several days with them in court!