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Mediation Preparation for Attorneys: The ABC's to Your Client's Best Mediation

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Mediation Preparation for Attorneys: The ABC's to Your Client's Best Mediation

This presentation covers tips and advice for attorneys preparing to represent their clients at mediation. In addition to suggesting best practices in terms of the mechanics of getting ready for a mediation session, the presenter will discuss other factors attorneys should take into consideration including, but not limited to, intangible aspects such as managing clients’ expectations and energy, and the attorneys’ psyche.

Presenters

Jo Colbert Stanley
Managing Member
Stanley Legal Services

Transcript

Jo Colbert Stanley: Well, hello everyone. And thank you for joining me today for mediation preparation for attorneys, or as I call it the ABC's to your client's best mediation. Thought I'd start out by addressing one question you all may have. And that is who is Jo Colbert Stanley. Well, that's me, I'm a Florida Supreme court certified circuit, civil and county mediator, and qualified arbitrator. I am also a public arbitrator with FINRA. If you do any SCC work, you know what that's all about. And I hold an LLM in alternative dispute resolution and litigation. I am currently working on my PhD in conflict resolution studies. But perhaps even more relevant here, I've been practicing law for over 20 years. And sure you can go ahead and do the math. I don't mind, but I've primarily focused on employment law, insurance litigation and other civil litigation.

   I say that's relevant today because as an attorney turned mediator, I've seen both... Well all sides of the proverbial mediation table. And so my perspective is pretty well rounded and based on way more experience than I care to admit, but hopefully it'll be helpful to you all. So give it a listen and hopefully I'll be able to impart some of the wisdom I've gleaned over all these years. That includes some hints and tips on best practices in terms of the mechanics of mediation prep. And we'll also get into some of the nitty gritty intangible stuff attorneys should take into consideration such as managing client expectations and energy and even your own psyche.

   So for simplicity's sake, I call this the ABC's just as a quick way to remember, or give yourself a checklist as you're preparing for the upcoming mediation. A is for arrangements that you've made. The administrative aspects if you will of setting up the mediation. B being for briefing. Have you briefed your client? Have you briefed yourself? Have you explained the process and the procedure. And C, have you counseled your client and yourself? This is the more intangible stuff I spoke about where we'll talk about scary things like feelings and energy. So, let's dig in. Arranging. Let's talk about that. During the arranging phase, this is where you'll prepare for the mediation, taking care of the administrative aspects. This requires proper and thorough preparation in advance. So you can really focus on your client on the day of the mediation. And I'll repeat that so you can focus on your client.

   It's their day after all. During the arranging phase, you'll want to be focusing on things like documents, presentations, schedule, and even technology and logistics. So, when we're talking about documents, consider this your record in advance of trial. And remember there are no rules of evidence. So gather everything you think is pertinent to the case. Also, while we live in a digital age of ESI or electronically stored information, don't underestimate the impact a piece of paper still brings to the proverbial table. Not to mention how low tech avoids high tech problems, right? And if you're anything like me, sometimes it's just easier to flip through a binder than to scroll through a laptop or phone. Business records, such as bank statements, personnel files were applicable, but if you want to pull out a performance review, warranty information, user manuals, receipts, these are all the documents you need to start pulling and arranging and putting together.

   The point is mediation is not the place to hide the ball or think you'll save the smoking gun until trial. Rather, mediation is the place to resolve your client's dispute in the most civilized, calm environment before heading into that arena. This includes contracts when we're talking about documents, written agreements between the parties. Obviously, but also think about correspondence, texts, emails, anything that corroborates your client's version of events. Remember no rules of evidence. You have more leeway during a mediation than you will when you get to court. So do you need to look at social media posts? Do you need to print those out? Just think about all the things that help present your client's point of view. So also I want you to gather pleadings and motions that you've already filed in the case exhibits to those filings and maybe draft motions you're considering filing in the event this matter goes forward beyond the mediation.

   For instance, it might behoove you to even have your motion for summary judgment already prepared or any other dispositive type motion. You should be as ready as you need to be for trial because in theory, your next step is trial. It would be unfortunate if you saved your best argument for your opening statement in front of a judge and jury wasting your client's time and money and perhaps more importantly, psychic energy. Your client or adversary may say, "Well, why didn't you bring that up at the mediation?" And really you don't want that to happen. So we also want to look into presentations when we're in the arranging phase of preparation. Now, when it comes to presentations, we're talking about PowerPoints, video reconstructions, visual aids you may want to bring with you. Get those ready in advance. Of course, but also take the time to think through their utility and impact.

   For instance, I know a lot of attorneys prepare really slick PowerPoint presentations, and those are really useful, especially in complex litigation or any type of case where fact patterns might be convoluted in visual aids help. But tailor your presentations to the case and your client. There's really no need for high CGI graphics if the case is more personal and you're aiming to focus on empathy or sympathy, as opposed to how much your client can afford to spend on these things. Right? So just make sure that when you're gathering and preparing your presentations, that you are really tailoring them as I said to your case and your client. Now, a word of caution about your presentations. If you aren't fully proficient in designing and using say PowerPoints, don't try to figure it out on the day of your client's mediation. Also don't rely on it so much that if there's some kind of technical snafu, you have no way of presenting your client's case. We all know Wi-Fis go down and computers get bogged up and all kinds of things happen. IT happens. It happens.

   But you need to be ready to go old school. Print out your PowerPoint slides for example, just a thought. Other types of presentation may involve videos. For example, you might want to bring an accident reconstruction video, or surveillance video or something like that. Again, practice queuing that up and playing it in advance and also make sure you know what type of equipment you need to bring with you. Not all mediators have TV studio style technology capabilities, believe me. So make sure you've got whatever you need to present your clients case. Now, what about old school things like dry erase boards and flip charts and easels and binders and notepads?

   Well, these are always handy and always immune from viruses and Wi-Fi glitches. Just remember, for example, if you're using a dry erase board or a flip chart or anything, writing big letters and bring markers with ink in them, believe it or not, that happens sometimes. Also, if you expect a big crowd at the mediation, I've seen construction cases where there is for example, a dozen people in the room, including a general contractor and subcontractors and architects, union leaders, and everyone's attorneys. My point is writing big letters and if it's a big crowd avoid using red ink. The suggestion is blue or black markers because apparently believe it or not, red is really hard to read from across the room for some folks, that's just a tip. Binders are great. You can send them ahead of time and not worry about forgetting to bring them on the day off.

   So, that's handy. And remember to think about notepads. Not that you'll be presenting your opening statement via notepad, but I want to remind you, bring one for your clients so she can take notes or draw, say useful diagrams to explain something, or maybe even Doodle to lower her stress levels, whatever helps. Okay. Let's talk about arranging time. This is a very important factor for preparing for mediation. We all have loads of time. Right? Now seriously, you want to make sure you allow sufficient time to prepare and participate. So if you need additional information from your client, ask them for it about a month ahead, then follow up and make sure you have it in hand two weeks in advance. If you're changing information with opposing counsel, like those binders we talked about, make sure you exchange that maybe a week ahead just to be courteous.

   And also with timing, remember the mediator's time, meet your mediator's deadlines for any submissions that can really take mediators off. If they've asked for summaries of the case or mediation statements and they're dropped in the mail like two hours ahead of time or overnight before the mediation begins. But then you also want to talk to your client about making sure they have enough time available to allow the mediation process to play out fully. It might be helpful here to remind or explain to your client that just because the mediation is set for two or three hours, it may take more time. So make sure your clients understand that. Now both you and your client will need to set aside focused time for mediation. And for you that means no doom scrolling on your phone or watching TikTok with the audio down while someone else is speaking. Tell your assistants don't call you, don't text you, don't email you. Don't double book yourself on mediation day. Yes, we've all seen you working on other cases while you're in between joint sessions. Try not to do that.

   I'm not being unrealistic, I promise, but I'm asking you to pay attention. Really focus. There's a lot happening at all times during the mediation. And every little thing might be a hint or clue to help you resolve the case. So, let your clients know that you're really there for them. Your client deserves your 100%. And by the same token, let your client know you expect their 100%. So if that means they need to hire babysitters or make transportation arrangements for after school pickups, maybe eat their lunch or get other things sorted out beforehand, just make sure that everyone has set aside enough time for the mediation.

   Remember we said, arranging also involves checking out your technology beforehand. In today's world, online mediation and virtual dispute resolution are here to stay folks. With regard to remote or virtual mediations, we're overcoming any of the initial concerns, say, regarding privacy, confidentiality, and competence, and the various platforms we're using, like Zoom and Skype and WebEx and GoToMeeting. There're so many now, but they're all becoming even more robust and user friendly as time goes on. That being said, if you're prepping for an online mediation, make sure everyone has the right programs and apps loaded on their devices. Familiarize yourself and your client with those programs and those applications. So, that might require a little tutorial or even a little practice session to make sure everyone has figured out how to use the programs and where to find the applications and feels competent. Now, you also want to make sure everyone's got a working laptop or device and that's for both of you.

   And as I always say, have a backup way of staying connected. So, that might involve exchanging phone numbers or text availability to the mediator, opposing counsel, and your client, and make sure that if necessary things are charged or you've brought your charging cable with you to the area where you're going to be logging on for the online mediation. You also want to make sure that you've got a stable internet connection. I find that one helpful tip is to turn off other devices if you're at home that may be sucking up bandwidth. So if you've got a lot of devices attached to your Wi-Fi router, you might want to disable them for the duration of the mediation. Even getting closer to your router if you're using your wifi at home might be helpful. And if you're going to be doing a lot of online mediations, you might want to even consider discussing boosting your bandwidth with your ISP or your internet service provider. These are just little things to take into consideration beforehand when you're going to be dealing with virtual mediation technology.

   So yes, in-person mediations in contrast to the virtual ones are still and will be the preferred format for many mediators going forward anyway. So you want to be prepared for those as well. In recent times of course, we've had to deal with COVID-19 concerns. And to the extent that those continue, be sure to find out from your mediator, what you may expect and to address these details with your client. For example, upon arrival at the mediator's office, will there be waivers or signing sheets or temperature checks or masks and shields still required at the mediator's building. Bring hand sanitized or wipes. But more importantly, check with your client to make sure that they understand any risks involved and that they agree to comply with the requirements at the mediator's facility. But on the general topic of logistics, don't forget simple things like directions and transportation. All too often, it's a frantic call on the morning of, or some other frazzling panic trying to figure out where the place is and how to get there. Don't let that happen.

   Think beforehand. Does your client need a ride? More than once I've had to pick up a client and make sure they got to their hearing or mediation. So you know how that goes. Again, the more prepared your client is, the better. Make sure you tell them to show up early. And by the way, in case you want to do some last minute prepping or consultation, is there anything new I should know? Is a great question. Make sure your client understands parking arrangements. Sometimes you guys know certain mediation firms, you may have to park in a whole nother building and figure out whether there's validation for the parking stubs or even if you have to pay for it.

   So you want to do your recon in advance on behalf of your client and yourself to suss all that out and make sure you leave enough time to park and how to get to the building. Whether you've got to go through a security check and so forth. Warn your clients about all that stuff as well. You may also need to consider accessibility concerns for disabled clients or clients with special needs. So, check the facility where the mediation is going to be held to see if they have things that are necessary for your client's comfort or accessibility. Wheelchair ramps, elevators. And with other concerns you might want to focus on whether your timing breaks appropriately for any medication or things like that. So again, these are logistical concerns and you want to make sure you've taken care of them or prepared for them in advance.

   Okay? So let's move on to the letter B in our ABC's. Here it stands for briefing. This is where you explain the mediation to your client. You brief them on the mechanics, the process, the procedure and participation. As I say, the three Ps. Fear of the unknown feeds anxiety, which in turn cloud judgment all around. The more your clients know in advance about the nuts and bolts of what's going to happen, the less intimidating the experience will be allowing them to be present and focused on the real goals of the day. So first you'll want to brief your client on the process, explain what mediation is and what it's not. We know it's not a jury trial, there's no verdict. And this is a good opportunity to explain the benefits of not going to trial to your client. Explain to them that the mediator is not a judge or an arbitrator for that matter. The mediator should explain this as well during her introduction, but it's good for you to explain it to your client first.

   You'll also want to explain that the mediator is neutral and impartial. That's to say the mediator has no stake in the outcome. They aren't advocating for a particular result, they'd like to see it resolved for everyone's benefit. But if the parties decide not to do that, that's okay with the mediator. There's no pressure. And also the mediator is not on either party's side. So, let your clients know that even when the mediator may ask questions that seem biased or in favor of your opponent or your adversary, that's not the mediator's intent, merely it's more likely a reality checking situation. Again, the mediator is neutral and impartial. Also, and this is important. Let your clients know that it's a confidential process and this goes both ways.

   So make sure your client understands the pitfall of breaching the confidentiality of the process. There was that famous case where dad went home and told his daughter what happened in the mediation and she put it on Facebook. And well, as you can imagine, it was not a great outcome. Indeed, the entire mediation agreement was set aside as a result of the breach of confidentiality. It's really important. You let that one get it through to your clients. But make sure that your client understands the confidentiality is in place for purposes of encouraging open dialogue and discussion with a view to really being able to air all grievances and all sides without the information being used against either party if the matter goes to trial as a result of the mediation resulting in an impasse. Now this is also the time when you want to explain to your client about self-determination. The clients get to decide what the outcome of the mediation is.

   And this might be their last chance before a judge or a jury takes that power away from them and decides the matter for them. So again, another good spot to explain the benefits to your client of mediation over trial. Another important part about the process when you're briefing your client is to let them know it's consensual and voluntary. They can stop the entire process at any time they want to. We talk about procedure when we're doing reefing part, you'll want to really get your client familiar with the nuts and bolts of what's going to happen on the day of the mediation. So they have an accurate and complete picture of what to expect. Again, remember, this is about erasing the unknown. Talk about what to expect upon arrival at the location. Will there be a receptionist and so on? But also for remote mediations, remember to brief your client on what happens when they dial in.

   So is there going to be a waiting room or will they have to turn on their video and things like that? Again, you're just briefing them about the procedure again here. But you also want to let them know that the mediator is likely going to make an introductory statement. In some states, this is a compulsory component of the mediator's role. And if you've done your job, your client will already know what the mediator's going to say in his or her introductory statement. Then the attorneys will likely be invited to make opening statements on behalf of their clients. So you want to explain to yours what order these statements will go in and why. And usually of course the plaintiff goes first because they brought the lawsuit, but sometimes mediators go rogue. So just prepare your client that the order of presentation doesn't necessarily mean the mediator has it in for them.

   You'll also want to explain fancy words like caucus that the mediator might use, meaning a breakout session or going to a private breakout room if you're using online technology. Basically it's a timeout. Tell your client what happens and why. And that the client can ask for one is needed if they want to talk to you in private, let them know they're not being held hostage in the mediation room. They can call a caucus or a timeout to take a bathroom break or stretch their legs, or as we call it, go out on the balcony for a little breather or emotional distance if things get heated. In addition to briefing about other aspects of the procedure, make sure you discuss the outcome, the possible ones that they may face. And those include of course, resolution or settlement agreement, adjournment, or impasse. Again here, you're briefing your client on the procedure and the possible outcomes that they are ready for anything.

   Now, you've briefed your client, but has your client briefed you? Now, remember you're going to get there before them, right? To make sure they don't feel lost and abandoned. So, please show up ahead of, or with your client. And this is when they can brief you. They can get that opportunity to talk to you one last time before the whole thing starts. This is when you'll want to ask them, is there anything new I need to know? Or have your goals changed? It could be a simple thing like, are you sure you want to go ahead with this? Or do you want to just go ahead and settle or anything, but just make sure that you catch up with your client before everything kicks off. This is an important step before any potentially dispositive proceeding actually. So get in the habit of doing it. Your client may no longer be interested in a say all or nothing approach, or maybe a payment has been made on an outstanding debt that's in dispute. Again, just make sure you give your client the opportunity to brief you.

   So part of the briefing process is reminding your client that this is their best chance to participate freely without the rigors of a courtroom and a judge and a jury. And as we said earlier, without worrying about pesky rules of evidence. So by participating, they can help you before the mediation evaluate what's motivating the other side and what they might need to bring to the table to reach a resolution. Your client can also help with brainstorming on ways to meet the other party's needs as opposed to the other party's demands. They may know some ground that you're not aware of. The client's participation might also include discussing with you a win-win outcome. And this is where you want to brief them on techniques like visioning, where you think about what would it look like if an agreement was made for X or if a decision between the two parties was actually reached, what would that involve? What would that look like?

   During the mediation, of course the client should be invited to participate and you want to brief them on that ability and the fact that you need their input. Remember clients need to be heard. So you'll want to encourage honesty and openness, vulnerability if you will, during the mediation with you. Again, remind them you can always take a caucus or breakout, timeout situation to have those private conversations with you. But remember you are not your client's only voice. Yes, you're their advocate and you're representing them at the mediation, but this is their day. This is their self-determination day. In addition to being heard, clients need to know that they need to listen. So you want to brief them on some active listening techniques as well. But this also includes encouraging an open heart and an open mind. Remember we talked about leaving your biases at the door. And remember there's no right or wrong at mediation.

   So things may get heated, people may get sad, but as long as everyone is participating fully and mindfully being heard and listening, the likelihood of reaching an amicable resolution at the end of the mediation session is way higher. Now, how can your client participate after the mediation? You can brief them on that by explaining likely responsibilities after the session has concluded, depending on the case you're presenting, you might discuss payments or custody arrangements or anything that could come out of the resolution of the case. You want to start briefing your client about the actual practicality of those decision. Remember confidentiality remains ongoing even after the mediation has concluded. You also want to explain the court case. What would happen as a result of the mediation reaching a resolution. What becomes of the case if it's not a pre-suite mediation. So does that involve having to prepare a dismissal and taking that to the court or does it require now preparing for trial?

   So again, brief your client on that possibility. But one thing that people often forget about when they're briefing their client, is billing. Too many times, clients are surprised when they receive the bill after mediation, because in their head maybe the case was over, and so there didn't need to be any more fees assessed. So again, to prevent any of this sort of unwanted backlash that may happen. If you have briefed your client fully about fees after the mediation, then they are unlikely to have a problem with you when that comes up. Okay. So you've arranged the mediation, you've taken careful measures and steps to prepare and get yourself and your client ready,, you've briefed your client on the process and the procedure and how they can participate and really make their day as valuable and the best use of everyone's time for the session. So what's next?

   Well, that's the C word. Counseling. This is where you're going to set realistic expectations, prioritize goals and discuss possible outcomes. And what I call manage your client's energy and your own. Remember in the earlier phases of arranging and briefing and pardon the awkward metaphor here, but what you've really been doing is going over a list of ingredients with your client, familiarizing yourselves with them making sure you've got them all. You have to go to the supermarket, you've picked up the rest of them and you've sorted out the measurements. For the counseling phase, you're putting all that stuff together in a bowl and making sure the ovens are at the right temperature to bake your best cake. So maybe the C word is cape. I said it was a bad metaphor. Anyway look, as you know, attorneys are also called counsel or counselors, right? There's a reason for that.

   And the least of which isn't fact that sometimes yes, you really do have to hold your client's hand. You have to be their therapist in a way, especially if you want a smooth mediation. And in the counseling phase, like I said, this is where you manage everyone's emotions, importantly, your own emotions as well. Both of you will be nervous and anxious about the outcome. So you really want to make sure you're in the most calm, centered state of mind as possible. That's key to dealing with the mediation process and any unexpected turbulence. Well, let's face it. Some of the turbulence might actually be expected for starters. And this is important. And we mentioned it earlier and you might remember beware implicit biases, yours and your clients, or we also call them your cognitive blind spots. Make sure neither of you is jumping to conclusions based on stereotypes or subconscious discriminatory thinking. Challenge yourself to see things from your client's perspective and your opposing counsels and adjust your own lens accordingly.

   So you may get really in the mode of advocate, but remember this is really your client's day. And even if they are suggesting a resolution that you personally wouldn't go for, or wouldn't agree with, it's not about you because today it's about your client's wishes. So, as we discussed, you're going to set realistic expectations for both of you. If you know that it's highly unlikely, the other side is going to come to the table and make any effort at resolving the case, let your clients know, don't puff them up with unrealistic ideas about what might happen. At the end of the day if they're disappointed, their anger and hurt will be directed back at you. So you want to make sure that you don't over promise. Better off to undersell. Right? Also, remember that your clients expect you to stand up for them at all times. And they'll be upset if you don't appear to at the mediation.

   So you might want to explain to them your strategies or your way of appearing in front of opposing counsel or the party on the other side of the table. These maneuvers of yours or body language or your tone of voice may alarm or disappoint even your client. But you need to make sure that your client is in on the act if you know what I mean. So again, set realistic expectations, not only of the outcomes or possible outcomes, but also in terms of what your client should expect or can expect from your representation of them on the day of the mediation. One of the important things that I talk about when we discuss managing energy, is the respond versus is react dilemma. Well, you want to warn your clients that the other side will probably come out first with their most extreme demands and offers because really first and second offers at a negotiation are not really the real zone of tension. Are they?

   So you'll want to explain that to your client so that they are ready to and embrace themselves if you will, for what might seem like observed or outrageous settlement offers in demands at the beginning of the process. If they're ready, they won't react. And by that, I mean, the emotional outbursts or situations where your client might feel inclined to get up and storm out of the room or otherwise impede the ability of you to continue with the mediation. Responding to those otherwise seemingly absurd or disappointing settlement demands and offers would involve you having conversations with the other side and continuing to present materials that you hope would influence decision making on both sides at the table. So again, you want your client to respond without reacting or as opposed to reacting. It's important that your clients understand that statements and characterizations about them will likely be made that they're not going to like, just explain to them that that's part of the game the other side will necessarily play in an effort to make their case more palatable or defend their position.

   Again, make sure your clients are aware of the likelihood of utterances from the other side that might seem to your client like slanderous even, or they're being defamed. Again, respond versus react. You need to be a comforting and calm presence for your client. During this process, remember it's really a challenge to handle a dispute in any setting. And when you're sitting across the table from your opponent, sometimes it's even harder to control emotions, but if you as their counselor are comforting and calm and non reactive, it will hopefully rub off on them. So you also need to make sure you don't take posing counsels bait. Yeah, you've told your client about it, but you've got to make sure that you don't let your own emotions hijack your common sense. You also need to engage in that respond versus react. So here for you as the attorney, it might help to remember this is not a competition, it's a mediation. You're not here to win something, you're here to collaborate with your client opposing counsel and opposing counsel's client to reach a joint resolution of your client's dispute with the other party.

   That's to say, don't get involved in skirmishes with opposing counsel or ego flexing or otherwise engaging in behavior that's just unbecoming. Grandstanding and flourishes and hysterics may be impressive in front of a jury of strangers, but in front of the mediator is pointless. And it's going to set your whole process off balance. You want to keep yourself centered remember, and be a comforting and calm presence for your client. After all you are their role model at all times during this process, they look up to you as the one who knows what's going on. So if they see you getting emotional and angry or upset and disappointed, that's going to be their cue to behave likewise. And speaking of competition, while it's true that you want to present yourself as a zealous advocate for your client, you have to remember not to go too far with that zealous advocacy. After all you run the risk of ruining your reputation in front of your client, the mediator and opposing counsel if you become uncivil.

   And also you might be getting narrow minded about what the meaning of a win is here. It's not just getting a settlement, any settlement for your client, regardless of their ultimate wishes. Really at mediation if you want to think in terms of wins and losses, you would rather be taking a viewpoint as to whether or not your client was satisfied with the outcome, whatever the outcome may be. So again, don't confuse getting a settlement, any settlement with winning and leave the competitive nature outside of the mediation room, rather than being mesmerized by notions of winning or losing, maybe focus instead on the prospect of transforming relationships between your clients and their opponent and longer lasting peace of mind. Discarding a competitive mindset lessen the likelihood of resentment on dissatisfaction. So don't just go into the mediation just as your client's advocate,, instead go in is their guide through a process that is theirs after all and try to empower your clients to reach the best outcome for them.

   So speaking of outcomes during the counseling phase, you'll want to really get into detail now about what things may look like at the end of the mediation. You've explained the terminology as we've said in the past, but now you want to really get down to bras tax. Say, if opposing counsel offers you $10, are you willing to take it? If they offer you nine dollars, are you willing to take it? What happens if you don't take the nine? What are you really getting at here is what negotiation experts refer to as the BATNA, B-A-T-N-A. Or the best alternative to negotiated agreement. In other words, a what's your client's walking away point? What's their cutoff? It's helpful here if you've explained to your clients the ebb and flow of negotiations. After all, some of our clients are not that sophisticated in negotiation strategies and techniques. So you might want to get them ready for what's probably going to be a lengthy back and forth between yourselves and the other side.

   That's not to say that it's a timed or a predictable back and forth. Actually the other side might jump by large increments if you're dealing with dollar amounts or abruptly withdraw a contingency of the settlement. So the point is that the client understand this back and forth and be perhaps drawn out sometimes unpredictable nature of negotiations. And if they understand their BATNA, their walking away point, they'll feel a little more comfortable as these discussions take place. Remind them that momentum shifts are neither regularly timed nor guaranteed. So they should be ready for anything. When talking about the BATNA or best alternative, it might be helpful to frame it in the worst alternative for your client. So suggesting to them, if we do not outreach resolution today, what's going to happen? This sometimes clarifies for clients the need to reach resolutions. When perhaps they've been holding steadfastly to an unrealistic idea or objective for the mediation session. While you're doing all of this, it's important that you yourself maintain an open and inquisitive mindset.

   And I'd say an unhurried demeanor with a willingness to really dig deep into your clients needs versus wants and what their true objectives are for the media and for any kind of resolution. So I call this having confident patience and nimble curiosity so that you can encourage really open dialogue between the parties, even when they are resistant or when there's friction. But remember it is important to remind your clients even when they get sidetracked or especially when they get entrenched to focus on the real goal. Yes, egos get bruised and as we've said, yours included possibly. And feelings get hurt. So everyone needs to try and stay focused and keep your client focused as well. This might require caucus sometimes, or as we've said earlier, stepping out onto the balcony metaphorically speaking. The idea is to manage the energy being brought and used at the mediation table.

   So to wrap up your counseling goals, you want to set realistic expectations, talk about responding versus reacting, discuss likely outcomes in detail getting into the best alternative to a negotiated agreement or BATNA. And also what's the worst that could happen? Right? And you want to make sure you work with your client to prioritize their goals. Do a little goal triage if you will. And during the mediation, keep their eye on that brass ring, keep them on track if you will, and let's face it. That can be the most difficult part during mediation when as we've said earlier, there's a lot of stuff happening and a lot of triggering comments and activity. So that's your job counselor, get to it, you've been trained for this. Another C word that comes into play with counseling is closure. And this is sometimes overlooked in preparing clients for their mediation.

   You might want to ask your clients, how would it feel to walk away from all of this with a sense of relief? And if closure, isn't the word that works for them, figure out a way to explain or define to them what that feeling is when even if a mediated agreement isn't reached, they still feel as though they have resolved a conflict within themselves perhaps. Closure is an important aspect of mediation and can happen in the absence of a resolution. Indeed, sometimes there is a full out impasse, in other words, no agreement at all is possible. And yet the client's report that they felt satisfied. If you can help your clients define what that satisfaction might feel like in advance of the mediation, or even during when things are getting a little muddled or seem sidetracked this might be the key to an all round successful mediation even if there's no signed document at the end of it. Look, in some cases, closure just means getting stuff off their chest. Sometimes that's enough for clients.

   You never know. Try to figure it out and work with your client to achieve that no matter the actual formal outcome of the mediation. In the counseling phase, as we've said, you're managing energy. And one of those types of energies that we come to expect is the overly emotional client. Let's face it. This is a difficult time for them. If it weren't, they wouldn't need you. So again, this is about preparing for your client's best mediation. How do you prepare for an overly emotional client? Simple, bring tissues. Just kidding. But no, bring tissues. More importantly, you know your client before you get to the mediation office or before you tune into the Zoom, you can probably predict what types of comments or behaviors from the other side of the table are going to trigger an emotional outburst from your client. You can prepare for this by cutting it off before it happens or being prepared to take a caucus, go to a timeout room and have a moment so your client can gather their emotions and collect their thoughts.

   Again, preparation is key, managing energy is possible. So there's your ABC's. Arranging, briefing and counseling. We've talked about the way to prepare for your client's best mediation day by taking care of the administrative aspects, the importance of gathering and reviewing pertinent documents in advance, making sure you are competent with any forms of presentations that you're going to be using whatever format they may be in. And also going through a review of the important parts of the record of your client's case. We also discussed the importance of having enough time to really focus on the mediation. And this is true for you and for your client. And so it was important for you to discuss with your client, any arrangements they need to make in advance of the mediation, so that that's really all they're doing on the day of. We also discussed briefing your clients, where you explain to them the nuts and bolts, if you will, of the mediation process, procedure and what you expected from them in terms of participation, and what they can expect from you.

   We emphasize the importance of reminding your client that the mediation is their one opportunity to fully participate in the process before it's taken out of their hands and put into those of a strange judge or a bunch of jurors. By participating before the mediation. For example, helping you evaluate the other side's goals and needs and wants and also during the mediation by fully expressing their point of view, your client can be the self empowered individual mediation is designed to help. When we got to the C word, we talked about counseling and managing emotions and your role as the person who was going to guide your client through the mediation process. We discussed the importance of setting realistic expectations all around to minimize the risk of dissatisfaction and disappointment with an emphasis on knowledge as a source of power. You now about the respond versus react dichotomy. And we discussed ways to prepare for that emotional roller coaster that mediation sessions can sometimes be. We talked about harmonizing emotional intelligence.

   Remember, don't let your emotions hijack your common sense with targeted counseling to minimize the risk of the process, getting derailed by reactive flare ups or obstacles that may have been created by emotional triggers. And now you know to prepare your clients for any possible outcomes using some visioning techniques, for example, designed to maybe advance your client's involvement even further by helping you craft possible resolutions. Again, this encourages their self-determination, their empowerment. And if possible closure at the end of the mediation from a psychological standpoint, not just from a procedural standpoint. We discussed also the importance of keeping your client focused on their true roles as opposed to becoming distracted by interim battles and ego challenges. And of course, this goes for the attorney as well.

   We explain some common negotiation techniques, such as the best alternative to negotiated agreement and its converse to foster realist expectations, and increased likelihood of reaching a resolution. So I hope these tips and thoughts have either been informative, helpful, maybe amusing or perhaps just a refresher for some of you, depending on your practice area. You probably go to so many mediation a month, they start melting into one big negotiation. Try not to let that happen, try and take a step back. And remember the true purpose of mediation is to give your client a chance to say their peace, to hear the other side's point of view fully, test the waters, maybe because after all, sometimes mediation is the really first opportunity that you have to see the other size point of view or strengths and weaknesses in their case. Remember, this is all about your client and your client's best outcomes.

   Indeed, mediation has several benefits, including the fact that it's done in an informal setting free of the rigors of the rules of evidence remember, so that everyone can speak freely. Speaking of speaking freely, remember is confidential and you should really let your client feel that security and knowledge that anything they says in mediation stays in mediation. And again, the closure possibility. The possibility of getting to a place of comfort and ease even if a resolution is not formally agreed upon. And that said, remember, it's not a contest. Leave the competitive edge outside of the mediation room and go in with an attitude of collaboration. This is the key to successful mediation. The more prepared you and your client are in advance, obviously the better. Unrealistic expectations are non-starters and will derail any mediation. Be honest with your client, even about your own nerves, because doing so will signal to them it's okay and it's going to be okay. Just put them at ease.

   So if you'll allow me to close out with just one more bad metaphor, think of mediation as a dinner party and your client is your plus one. And you want to make sure they're going to have the most comfortable if not, maybe enjoyable even, but you want them to have a good time. So how are you going to make that happen? Well, for starters, you're going to tell them what the dress code is, which by the way might be something you should share with your real clients for your real mediations. I don't know, but back to my bad metaphor, what to wear, where to go, what time to show up, right? Maybe you're going to tell them what's going to be on the menu in case they have any food allergies or dislikes. You're going to tell them who else will be there so that they know what to expect in terms of company and conversation. And you might want to warn them if someone they don't like is going to be there or maybe a topic of conversation is going to come up that they're uncomfortable with.

   Maybe you'll tell them what kind of it will be playing. Will there be dancing? Should they bring their dancing shoes even? My point is, and again, I warned you it was a bad metaphor. You would give your plus one, all the information they need to come to the party, feel comfortable, have a good time, be ready for any hiccups and go home content. Even if they didn't win the fabulous door prize. And of course, having brought your plus one to this fabulous party, you're not going to engage in any behavior that would make them feel uncomfortable, right? You're not going to start any problems. So that means you're going to be on your best behavior, calm, cool, and collected at all times to make them continue to feel safe and secure and that you've got their back. And don't forget at the end of the party, you're going to take your client home, right? You wouldn't leave your guests stranded.

   So you're going to give them closure. And I think that's about enough of that metaphor. Don't you? Listen, my point is simply best mediation start with the best preparation. And now you know that preparation is easy as ABC. So, thank you for listening to me and I hope to see you across the mediation table one day soon. Bye.

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On demand
1h 22s

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