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“The Will Not to Believe”-The Mediation Nightmare

October 31, 2012

Halloween is a wonderful time of year to discuss nightmares.  Here is one for you to consider.

For any mediation to succeed, parties must believe that a certain future predictable range of outcomes are likely to result in their alternative trial of their dispute if their mediation is not successful.

This concept is the central core of mediation; being able to compare a present immediate net resolution opportunity to the same of any future possible trial alternative.

This  “predicting” the likely future result, and then, in substitute, voluntarily finding a present result that is equally advantageous to that future result but without litigation is generally the entire driving force of any mediation.   See,Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful”, December 19, 2010.

Accordingly, if trial counsel and/or the mediator cannot obtain the parties’ belief in their own counsel’s predictions for their future, nothing offered in any reasonable compromise at mediation really has much chance of success.  You cannot evaluate a concrete voluntary resolution opportunity without having something, reasonably objective,  to compare.

Thus, the “nightmare” of mediation, for the mediator and ultimately all of the other parties: a party simply will not believe their own counsel!

I have been wondering what to call this repetitive quandary.  It happens more than you might suspect.  And, for many different reasons.

Recently, I was mulling over, again, why a particular party in a complex matter simply could not accept his own attorney’s assessment of the likely outcome of his future trial.  The facts were relatively undisputed, the law was very clear, the attorney was a skilled and objective advocate for his client, but despite his best efforts, the client simply refused to face the reality of accepting a present offer that, for the client, was, very, very, likely, a better net outcome than what any future trial might offer.  All, by the way, because of superior efforts by the client’s attorney in all of the usual required pre-mediation efforts that most mediation-successful attorneys utilize .

As I went to bed that night, again thinking about this unnamed problem and how to combat it, I picked up my latest, usual bed-side book, and immediately read a passage that made my diagnosis now so easy.  The outstanding author, Herman Wouk, in his 1978 historical novel, “War and Remembrance”,  commenting upon the world’s initial reluctance to accept early warnings of the early stages of the holocaust, wrote: “The will not to believe.  It is simple human nature.  When the mind cannot grasp or face up to a horrible fact it turns away, as though refusing credence will conjure away the reality.” Page 176.

There was the answer.  Simply stated some clients simply cannot accept any view of the future that is “too bad” to contemplate.

And, now that we have your diagnosis, doctor, what is the treatment?

The answer:  Make the client believe!

But doctor, isn’t the larger question, how?

Yes.  And, thus my simple treatment “prescription”:  build a bond, a trust, with your client that will allow/force them to be able to accept, believe, in your recommendations and predictions.

Whether counsel for a plaintiff/complainant or any defendant, likely building that bond/trust begins with your first meeting with your client.  If you are lucky, your client will have some advance knowledge of your competence.  If not, frankly, you must begin immediately to establish your competence with that client.  This important subject is a full one for another day.  But, suffice it to say, if you can’t do this, you clearly do not understand the business of law.

Next, have a process that keeps your client in contact with you.  It is always a good bonding technique to send copies of much of your ongoing efforts on their behalf directly to the client.  Not everything, of course, (careful with “demand” letters) but a fair sampling of your work product on their behalf, or at least a periodic report.  And, of course, that means actually doing something, timely and often, for that client.  Again, suffice it to say, if you cannot keep in close client contact, perhaps you are either in need of help for your workload or not working hard enough?

Next, you will want to meet often with your client.  And, do it in person!  Telephone conferences are efficient and of course, better than no conferencing, but much too impersonal.  Press the flesh, let the client sample your coffee, see your staff and frankly, just get to know YOU.  Too often a client is seen only immediately before some important event that crowds out the opportunity of letting your client come to trust you.

Always begin your discussions of the realistic future of their legal dispute, early, very early.  I understand competition and the difficulty of telling clients bad news.  But just when do you plan to tell them bad news?  Or, more importantly, the real future of their dispute?  Frankly, if your client cannot accept bad news, do you really want them as a client?  When the bad news comes, and they have not be fairly and timely warned, just who do you think will be blamed?

In my personal practice, I made it my method to downplay every client’s expectations from the very initial meeting.  And, frankly, almost every opportunity thereafter.  Again, the more meetings, the easier the “down” conversations, and in smaller increments.  By the time my client had any opportunity of closure by resolution or trial, usually their end result was therefore, well above their expectations.  And, by no accident.

And more than once, after turning down a client’s representation, with a thorough explanation of why, that same client or a friend recommended by them, returned to me, stating that they appreciated knowing their real future even if they did not like the predictions.  You would be surprised how insightful most persons are if only you will level with them.

And, pleased clients are your most important new-business source.

Another good technique is to accumulate records/notes upon settlements and trial outcomes in those arenas of the state in which you practice.

Don’t wait until you must have the information to obtain it; it is much harder after the fact.  Keeping newspaper articles (not as many in larger cities) and other published trial results (i.e., keep those “other firm” newsletters) of both outcomes, good for your particular practice or bad, are critical.  You will need such “tangibles” to share with a client depending upon what point you need to “sell”.  But also remember that only the “best” results are usually published!

Prior to mediation, or any settlement discussion, and again, early, always consider meeting with your client with others of your firm (or, if a sole practitioner, another practitioner).  Opinions coming from more than one source, at any conference, carry much more weight.

And, consider including other “voices of reason” at your mediation (or before) including co-counsel, trusted advisors to your client, objective family members and, of course, any personal counsel or retained supplemental counsel such as guardians-ad-litem or probate counsel.  The more viewpoints, the less polarization!

Finally, at mediation, wisely use your mediator, before and during mediation, to assist you. 

Under Florida law, mediators may not give evaluative opinions, but “opinions” for so many other matters than the specific value of your case is clearly fair inquiry.  Using your mediator’s experience in generic matters of jury makeup, the unpredictability of juries (and judges), matters of law, and even substantive looks at the weight of individual pieces of evidence can be quite helpful to you and your client.

You may or may not have wished to be a physician to be able to offer the healing arts.  However, with this advance diagnosis of one mediation-killer, “the will not to believe”, you can now inoculate yourself and your client against this nightmare, by simply gaining your client’s trust and confidenceSo that when your client must believe your considered advice and opinions to succeed in mediation, they will!

Happy Halloween, 2012.  Dan

One Comment leave one →
  1. October 31, 2012 6:24 pm

    Great points, Dan. People need to hear something at least 3x before remembering and/or believing it. Your tips also take into consideration that some of us learn best through visual media, where others are auditory. Either way, in-person meetings always make more impact than telephone conversations.

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