Skip to content

Mediation Strategies: Consider having your client(s) speak directly to the other side

March 15, 2011

The conventional wisdom, certainly outside of mediation, is that no lawyer wants any client they represent to speak to anyone about anything involved in their dispute.  And there is good practical, and more importantly, valid legal reasoning behind that wisdom.

But with the advantage of  essentially total confidentiality in mediation, and under the proper circumstances and with advance preparation, your client’s communication directly to the mediator and most importantly, directly to the opposition, can have some surprisingly valuable results.

And, after all, isn’t the central theme of mediation “self-determination”?  Shouldn’t your client feel as actively involved with every portion of the process as possible?   Isn’t silencing them into the role of only a passive observer  effectively removing them from involvement in their own case?

At every point in litigation preparing for trial, both sides undoubtedly will have formed impressions upon what kind of impression the opposition will make as a witness at trial.  All lawyers know the value of a good impression or the disaster of a bad impression made by any witness.  And the better lawyers know their entire case may hinge solely on their client’ appearance and acceptance by the trier-of-fact.

But does the opposition really know if your client makes a good or bad impression?  How many opportunities have they had to even meet your client?  How many times have they observed them in testimony?  And, are the opposing counsel’s reports to their client regarding this important evaluation component really accurate or unconsciously biased?   

Good or bad, your opposition can know if you will simply allow your client to speak, directly to your opposition.   And, this strategy consideration applies regardless of whether your client is a Plaintiff or a Defendant.  How many causes are decided based almost solely upon the competing believability of opposing parties?

At the least your mediator should have an opportunity to observe any positive or negative that you have attributed from an evaluation of any party’s likely performance at trial.

More importantly, your opposition’s entire pre-mediation approach to resolution can change dramatically during  mediation if you have a client that can and will make a good appearance.  Opposing positions rarely change.  But with a change in facts, opposing viewpoints rarely fail to change.

Is this a tactical risk?  Of course.  And each attorney will have to make this important call.  But, why not find out in the confidential setting of mediation just how your client will fare in his/her communication of the facts of the issues and themselves?  And, at the worst, should they perform poorly, particularly with preparation,  shouldn’t you also be adjusting your own position accordingly?

Of course you must work with them carefully to make sure they present well  with limited subjects and time.  You do this in preparation for your trial.  Why not do it for the same expected benefit for mediation (where 75% or more of disputes end!)

And any insurance company who misses their own opportunity to have their representative  say “I am/we are sorry” will likely pay thousands of dollars more for omitting, especially with feeling, those three easy little words.  Many injured parties start their litigation simply because no one seemed to care.  Where else can a party (or party-in-interest) have the opportunity to convey these human feelings without some kind of  legal admission?

And this same simple apology can even work with disputes in which nothing was done wrong by your client at all.  After all, can’t we be sorry something bad happened to another human being, even if we had absolutely nothing to do with it?  How many times have you read about a tragedy and mouthed the words, “I feel so sorry for them”.  You didn’t do anything, you are simply sorry it happened to anyone, however it happened.

It takes a bit more pre-mediation evaluation, planning and preparation, but good lawyers will add to their mediation strategies this “golden opportunity” to allow their client to speak to the opposition during mediation.   And in so doing, they will also allow their client to finally actively participate in the process that could very well end their dispute.

No comments yet

What Do You Think? Your Insight Can Be Helpful To Others.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: