Getting Ready for Mediation Series, Part 2
By Mediator Lee Wallace
Pretty much every client has grown up seeing a steady stream of trials on TV and in the movies. But — as a mediator, I’ll be the one to say it! — mediations are not exactly high-drama fodder.
Most clients have never seen even a pretend mediation, and they naturally tend to fill the knowledge vacuum with what they do know about. Most figure a mediation is somewhat like a trial. Your client may half-expect you to step to a podium and deliver a passionate closing argument. When you give a low-key opening statement instead, they may be concerned that you do not know what you are doing or are not fully invested in their case.
Having a confused client is not in anyone’s best interests; clients who know what to expect are far more likely to be able to enter into the settlement process and help get the case resolved. Here are six things your client probably will not know about mediation – until you tell them! All six items are covered in my free booklet, which you can download here.
To help you prepare your clients, check out my booklet, What to Expect at Mediation. The booklet is free to attorneys, and it is designed for you to hand to your client. It explains why mediation is important and useful, and what will happen during the mediation. It also has a page of frequently asked questions that covers the questions your client is most likely to ask — or be afraid to ask.
Six Things Your Client Needs to Know Before Mediation
1 — Opposing Sides are in Separate Rooms.
Be sure to explain to your clients that the two sides will move into separate rooms after the opening conference. Most clients are greatly relieved when they hear the parties will be separated for most of the day, particularly clients who dislike conflict or have bitter feelings about the other side.
Litigation can result in a lot of hard feelings, and mediators generally agree that the parties have a better chance of settling a case if they remain in separate conference rooms. Occasionally it makes sense to gather everyone together again to discuss a particular issue, but for the most part the two sides remain apart.
2 — The Mediator Will Go Back and Forth.
Once the parties move into separate rooms, the mediator goes back and forth between the two sides. But this phase can look very different depending on the mediator, so it helps to know what your mediator does as you explain this phase to your clients.
Many mediators simply carry numbers back and forth; when one side makes an offer or a demand, the mediator takes it to the other side. When I mediate a case, however, I use this phase to ask you about the strengths of your case and the weaknesses in the other side’s case. I will probe the other side for the same information from their point of view. My goal is to make sure everyone has full information and can realistically assess the risks of going forward to trial; you make better decisions when you are working with all the facts.
3 — The Mediator is a Neutral, Not a Judge.
Clients frequently assume the mediator is some sort of judge. They may not understand that the mediator is not going to “rule” on the case, or tell the parties that they have to settle for a certain amount. If the case does not resolve at mediation, a judge or jury will make the final decision.
As a mediator, my goal is to help the parties work out their own resolution, without having to go to trial. And, as I point out to parties, because I am a neutral, I can be objective and offer a fresh, different perspective.
4 — What You Tell the Mediator is Confidential.
Most clients know they can talk to their lawyer confidentially, but they really are not sure what to think when they talk to the mediator. Your clients will be more open and helpful in the negotiations if you explain that what they tell the mediator in a private conference is confidential. Usually you are going to want the mediator to tell the other side what was said, but the option is yours.
5 — You Never Have to Take the Deal.
Clients usually like hearing that the other side’s final offer or demand is not binding in the same way that a jury verdict is (subject to an appeal or JNOV). If the client doesn’t like the offer/demand, the client doesn’t have to take it. It’s just that simple. The offer/demand only becomes a final settlement if the client chooses to accept it.
6 — Mediations are Hurry-Up-And-Wait Situations.
Clients will be very surprised by how much time they will spend waiting, which can get very boring.
Explain why the process takes so long. After your side makes an offer or demand, the mediator heads into the other room to explain what your offer/demand is, and the reasoning behind it. The other side listens and then confers privately about how to respond. Sometimes a party has to call back to a corporate office to get authority to make a move. Once the decision is made, the other side calls the mediator back in and explains the next demand or offer. All of those things have to happen before your client hears back. The bottom line is that your client may be surprised by how much of the day is spent waiting.
If you tell your client these six things before your next mediation, your client will be more patient with the process, and better prepared to help resolve the case.
What Attorneys Are Saying About Mediating with Lee:
“Lee’s vast experience as a practicing attorney gives her credibility with clients who listen, because they know she knows what she is talking about. That said, she never tries to tell clients what to do and is very respectful of their reasoning and particular situations. Lee truly cares about other people and that compassion will serve her well in helping them get the best results. Lee is a great mediator and I hope you will grant her the opportunity to try to resolve your case as well.”
– A. Bronsted
“We’re going to ask for Lee again, and again, and again!”
– S. Mahoney
I recently had the pleasure of having Lee Wallace serve as a mediator for a difficult wrongful death case. A prior mediation had failed, so I had little hope that this ensuing mediation would be successful. Indeed, there were several times that my client was ready to terminate the mediation, but Lee counseled us to stay. Ultimately, while it did not settle that day, she established a framework that allowed the parties to settle the case soon after the mediation concluded that day. Lee did a great job of staying with the matter and seeing it to conclusion. I highly recommend Lee as a mediator.
– P. Strott
Lee Wallace is both a brilliant lawyer and a very nice person. She gives her all to a mediation assignment. She is a hard worker, with a very quick mind, who is able to thoroughly understand the important aspects of even very complicated factual situations and knows how to apply the law to them. She got my difficult case settled and I will not hesitate to seek to use her again.”
– K. Pollock
“I recently had my first mediation with Lee Wallace, and I must say it will not be my last. She did a great job facilitating negotiations, and helped each party grasp both the strengths and the weaknesses of their arguments. I would not hesitate to recommend Lee Wallace as a mediator for your case!”
– B. Collins
“Lee Wallace exceeded all my expectations as a mediator in a Personal Injury suit presented before her. Lee’s experience, education and demeanor was amazing and she gained trust from both parties at the very beginning. Not only was she polished and highly professional, she was thorough and did not waste time bringing the mediation to a successful conclusion. Overall a very pleasant experience and my client was pleased with the result as well.”
– D. Russell
“Lee had the intellect necessary to get a really difficult case settled even where the odds were stacked against her. I would use Lee to mediate any of my cases.”
– A. Joffe
“Lee helped get a case settled that I never would have imagined would have settled that day when I walked into that mediation. Opposing counsel and I had drastically different views of the case, as did our clients. Yet, with Lee’s knowledge, experience, and preparation, she was able to lead us to a resolution that my clients were satisfied with. I look forward to using Lee again in the future!”
– A. Grubbs
“Lee’s calm reasoning and creative solutions helped us to resolve a challenging case when one side was willing to walk away and the other side would not budge on their number. She worked hard to find a compromise when none seemed possible.”
– B. Strothers
“Lee brings to her mediations a wealth of experience from which all parties can draw. Her impressive ability to marry the case facts to negotiation strategy aided in the just resolution of our case.”
– N. Campbell
“Lee was prepared, having read all the documentation I had forwarded her pre-mediation, and she did an outstanding job in getting a difficult case settled. I look forward to using BAY Mediation and Lee in the future.”
– M. Smith
“Lee Wallace helped us resolve a case that I did not believe could be resolved. As an initial challenge we had multiple parties, several of whom had to join by remote video conference. The details of the case were also challenging [and] there were widely disparate views regarding case value. Lee was resolute, objective, and prepared. While her 30 years of trial experience and breadth of knowledge on a variety of legal issues were invaluable, her kind and logical demeanor got this case resolved. I must confess at one point I was ready to storm off myself in frustration at the other party, but Lee encouraged me to stick with it and keep working. I’m so glad she did!”
– A. Long
“It was a pleasure working with Lee T. Wallace during the mediation process. She pushed both sides to continue to fight through the process and not give up. And because of her vigorous determination I was able to settle my client’s claim to their satisfaction.”
– S. Carson
“Lee did an effective and efficient job getting this case to a successful resolution. She takes a low key approach to make sure each side does not feel undue pressure to increase their offer or decrease their demand. I will definitely use Lee for future mediations.”
– J. Brown