Not long ago, alternative dispute resolution was one of the many stopping points on the path to trial. ADR was something you checked off the list as you prepared a case for a presentation in a courtroom. Increasingly, though, ADR has become the last step in the life of a lawsuit – the ending place where litigation is concluded.

The emergence of ADR, and specifically mediation, as the process by which most cases will end, requires fresh thinking about the client’s role in a mediation and how counsel will approach this process.

With few clients ever seeing the inside of a courtroom, let alone getting to tell their story to a judge or jury, there is a corresponding need for clients to have a speaking role within the mediation process. In reaching a resolution, each client wants to feel that his or her story has been told, listened to and counted.

It is easy to forget that a client’s perception of fairness and sense that mediation has produced a just outcome often is not tied to a dollar amount – the value system that the judicial system superimposes on the nuanced personal problems that find their way into suit. The perception of fairness draws as much from the process as from the ultimate result: clients’ beliefs that mediation allowed their voice to be heard and their sense that their position was effectively advocated.

I sometimes run into counsel who are reluctant to allow their clients to talk in a joint session and then immediately try to interpose themselves as a protective buffer between mediator and clients in private caucuses. The attorney becomes the filter for any communication with the mediator, boxing the client out of any meaningful role in the process, let alone a chance to talk about what is personally important. A skillful mediator will work around the filter and find ways to start a dialogue directly with the client. Skillful counsel will invite a direct conversation between the mediator and the client in private session and may even encourage the client to have a speaking role as part of the joint session.

Open conversations between mediator and client have value on a number of levels. They allow a relationship of trust to develop that may be critical to resolving a case when negotiations get difficult. These conversations are also informational and may provide the basis for creative approaches to resolution that are not immediately apparent from the claims in the lawsuit. They also sometimes will result in new information that can be significant in working toward resolution. If counsel insist on talking for their clients, these conversations cannot take place.

Although there is a risk if counsel talk too much when they should sit back, there is also a risk when counsel do too little and fail to advocate for their client in the joint session. How often do we hear this statement: “We have set out our position thoroughly in our mediation summary, and I don’t have anything else to add.”

From the perspective of a client looking to counsel to advocate his or her case, this is akin to an attorney waiving opening statement at trial and not calling any witnesses. While I am not a fan of exhaustive presentations by counsel in joint sessions, I do think that clients want to know that someone was advocating their position and making sure that they were heard.

There are limited cases where counsel will jointly agree not to make opening presentations to avoid further upsetting parties who cannot be together and starting the mediation off in a direction away from settlement. Those situations should be the exception.

Another problem that occurs infrequently in northern New England, but can have a profoundly negative impact on the mediation process, is counsel who decide that the mediation process is the opportunity to prove his or her worth by demeaning and insulting the opponent and the opponent’s attorney. The level of professionalism expected in a courtroom should be counsel’s baseline at mediation. Experienced counsel know how to make effective points while maintaining an atmosphere of respect. Successful mediation is ultimately a facilitated negotiation process, and offensive behavior is an odd strategy to promote settlement.

If mediation is the new paradigm for case resolution, the level of preparation prior to mediation has to increase. It does not help to go into mediation having never discussed settlement ranges with one’s client. It does not help in a multi-defendant case if the defendants have not even discussed allocation or levels of participation. It does not help if lien amounts are unknown, lienholders have never been contacted and there is no way to reach them at the mediation. It also does not help if significant new medical bills or other new evidence of damages are handed to the other side for the first time at mediation session.

A recurring problem in personal injury mediations is insurance carrier participation. Although the logistics of having an out-of-state claim representative appear in person are sometimes daunting, it often sends the wrong message if the plaintiff shows up in person only to find the other side is “available by phone.” If a claims person is not going to attend in person, make sure this is known and agreed to by opposing counsel. Consider arrangements to join that representative in the joint session by Skype, WebEx or phone. On the defense side, an insurance representative would be less than happy to show up in person to a mediation only to find that the plaintiff is not attending but will be available by phone “as needed.” Personal attendance by decision makers on both sides communicates respect and commitment to the mediation process. It improves prospects for a successful resolution.

Negotiation strategies in the course of a mediation are different from attorney to attorney and from case to case. One strategy that accomplishes little – except immediately starting the mediation off on the wrong foot – is moving backwards from a pre-mediation settlement position by taking an offer off the table or starting out with a higher demand than was in play pre-mediation. Although inexperienced counsel may think that this type of negotiating shows “toughness” to a client, it can create very unrealistic client expectations and usually backfires. This type of gamesmanship can quickly make the dispute personal and distract attention from the more meaningful issues of case valuation and risk.

With mediation displacing trial as the forum in which we resolve most disputes, we need to rethink what this means for clients and their role in the litigation process. As counsel, we also need to rethink what we are trying to accomplish and how we can be most effective if mediation is the practical ending point for most cases. This transition is happening. The most effective mediation counsel, like the most effective trial counsel in years past, will be fully prepared for these unique challenges and opportunities.

This article first appeared in the New Hampshire Bar News – October 19, 2016

About the Blogger:

A shareholder at the Primmer Law Firm and an adjunct professor of negotiation at Vermont Law School, Gregory S. Clayton mediates cases throughout New Hampshire, Vermont and Maine.

He may be contacted by email or at (207) 618-6070 or (603) 444-4008.