Are You Ready to Mediate?: Part 4 - Preparing the Client for The Mediation Session

Many clients are new to the mediation process and/or uncomfortable with the prospect of confrontation with the other side. For these people, attendance at mediation can be intimidating or even frightening.  It need not be.  For well-prepared clients, supported by strong counsel, mediation offers a unique opportunity to address the opposition in a confidential and informal business setting, with ultimate control over the outcome of the dispute resting in their hands. Ensure your clients understand this opportunity, how the mediation process works and what makes the mediation setting different from the courtroom environment.  

In preparing a client for mediation, counsel is faced with two key strategic decisions: whether to participate in a joint session and the level of client participation in the mediated discussions.  

Some counsel wish to forego the joint session, preferring to caucus and mediate through shuttle negotiation.  There may be valid reasons for favouring this approach in a particular case (for example, where there is a history of extreme acrimony between the parties).  However, a joint session can provide many benefits, including offering a
chance to establish a positive negotiation tone at the outset of the mediation, exploring factual discrepancies between the parties, uncovering hidden interests, and discussing the interpretation of key documents.  Not to be overlooked is the prospect of increased participant satisfaction.   From my seat at the mediation table, in cases where the client is comfortable with the joint session format and has an opportunity to address the other side in it,
there is a higher level of client satisfaction at the conclusion of the mediation process.  
 
To what extent you allow your client to speak at the mediation – in a joint session or in caucus – should be carefully discussed and planned in advance.  I recognize there may be times when it would be better for counsel to speak exclusively on the client’s behalf – to protect a client who may be emotionally vulnerable, unfocused or inarticulate.  However, in my experience, clients can be a significant asset at the mediation session, by sharing valuable information, conveying appropriate emotion and enhancing their credibility. Remember that no one knows the client’s story better than the client. And, an articulate and credible client at mediation, particularly in a
joint session, gives the other side a glimpse of how that person will perform as a witness.  A strong performance at
mediation can only enhance the client’s credibility and increase your negotiation leverage at mediation.

Spend the time with your client prior to the mediation session to determine how they can be of assistance – what topics can they speak on, what if any limits of communication need to be imposed, what emotional hot-buttons should be avoided to guard against unproductive escalation, and how can they best articulate their most critical
needs and desired outcomes.  Develop a rescue plan in advance that allows you to intervene when the discussion goes beyond the client’s breadth of knowledge or comfort zone. 

A well-prepared client should be viewed as an asset not as someone to muzzle at mediation.