By Mediator Lee Wallace
A few weeks ago, I wrote about how you can mediate when you hate the other side. Afterwards, I got a great question from a notable qui tam lawyer. How do you handle a mediation when the other side hates your client? (Oh, sure, in theory they might hate you personally. But my readers are so lovable, that’s not likely to happen.)
Trying to mediate when you heartily dislike the other side is challenge enough, but at least you have a chance of keeping your own emotions in check. When the other side positively radiates hatred toward your client, however, you have no control over their emotions. And make no mistake, unchecked emotions can cloud a person’s judgment and undermine the chances for settling a case even when, objectively speaking, the case ought to settle.
A Universal Problem
Defense lawyers are more likely to experience the problem, because the plaintiff is more likely to be emotional about the injury/damages and what caused it. In a professional liability case, for example, the plaintiff may feel betrayed by the lawyer who represented her or the doctor who cared for her. In a car wreck case, the plaintiff may have a lot of anger to vent because she blames the careless or drunk defendant.
But plaintiff’s lawyers may experience the problem, too. For example, in a whistleblower case, the defendant often thoroughly dislikes the relator who is bringing the suit. Typically the relator used to work for the defendant, and the employees who are still at the company feel angry and betrayed because their former colleague is painting the company — and them — in a bad light. Similarly, in an employment case, the boss accused of sexual harassment may be furious at the blow to his reputation and credibility within the company.
Use These Three Strategies Before Mediation Starts
You may not be able to control the other side’s emotions, but you can make sure you do not do anything to inflame the situation. Here are three things you can do before the mediation gets started. Next week we’ll cover six strategies you can use at the mediation itself.
1–Be Honest with Your Client – Up Front
In a qui tam case, the Government may let you know that the defendant thoroughly dislikes your whistleblower. In a traditional case, you will probably get that information at the deposition of the opposing party, when they unload on your client. Don’t let your client get blindsided by the hatred. Let him know that you understand that the other side dislikes him and explain what makes you think that. Your client will be forewarned and will understand what you are about to ask him to do.
2–Ask the Client Not to Speak at the Opening Conference
Usually the client should speak at the opening conference. But when the other side sees your client as the enemy, ask him to save his comments for the private caucuses. As the mediator, I am glad to listen outside the earshot of the opposing party.
3–Talk to the Mediator in Advance
As a mediator, I can do a number of things if I know in advance that one party harbors a lot of animosity to another. For example, I can arrange the seating or shorten (even skip) the opening conference. So please talk to me about the problem. We can talk through the best ways to address it.