By Mediator Lee Wallace
Do you have one of these three clients? As a general rule you want your clients to talk at the mediation opening conference — but NOT these three types of clients! If your client fits into one of these categories, urge him to save his comments for when we meet privately in caucus.
The Loose Cannon.
You never have any idea what is going to pop out of this client’s mouth. You may have every other witness on your side, but when the Loose Cannon gives a deposition or takes the stand, all bets are off. Will he attack the other side? Blame a third party you have never heard of? Give a brand-new (and of course, fatally flawed) version of the facts of the case? You endure his testimony in an agony of suspense, because you truly have no idea what is going to happen.
Attorneys should encourage most of their clients to speak at the mediation opening conference. But if your client is a true, out-of-control, loose cannon, then it makes sense to ask him to keep quiet during the opening conference.
Of course, mediation is the only time you will have that luxury. If you have one of these clients, then you need to be very serious about reaching a settlement at mediation. At mediation, you have the chance to tell your client to avoid speaking; at trial, you will have no choice but to put your client on the stand and hold your breath.
The Really Bad Impression.
Some of the representatives for the other side may not have met your client yet. They will be eagerly watching your client as they evaluate how a jury will view him or her.
In an earlier blog post about why you should encourage most clients to talk at mediation, I pointed out that no one can tell the story of the case like your client can. But that blade cuts two ways; if your client is abrasive and angry, or just generally makes a very poor impression, your client might wind up adversely impacting the settlement value of the case for you. If you think that your client may make a bad impression, encourage her to wait for the private caucus with the mediator. I can make sure that she gets a chance to say her piece there, where it will help her get the emotions off her chest without affecting the case value.
The Big Talker.
Some people like to talk — a lot. If your client is a Big Talker, then he or she is exactly the sort of person who will benefit from getting a chance to say his or her piece at mediation.
So don’t clamp down on the Big Talker entirely, but remind him that the parties have just one day to try to settle the case. Clients who talk too much may eat up the time and prevent the parties from reaching real discussion and addressing the issues that could settle the case. And, of course, the Big Talker is more likely to also be a Loose Cannon.
If your client falls into this category, discuss a time limit in advance, and arrange a signal when time is up.
So if you represent the Loose Cannon, the Really Bad Impression, or the Big Talker, it makes sense to encourage your client to say as little as possible during the mediation opening conference. For most clients, though, you probably will be better off if you hand them the proverbial microphone and let them say a few real, honest, unscripted comments. And if the thought of doing that makes you shudder in your lawyer boots, you can take comfort in the fact that at least mediation is confidential!