Client Preparation
Just as preparation is critical for litigation and negotiation, it is paramount for mediation. Many attorneys are unfamiliar with mediation, and most clients are even less familiar with the process. For productive, successful mediation, and party satisfaction, it is paramount that both the attorney and client are prepared. Speaking with your client is one of the most important components of preparation.
When preparing a client for mediation, you should educate them about the process and styles of mediation. If possible, work with the client to determine what style of mediation they would prefer, explaining the elements and benefits of the commonplace facilitative and evaluative styles.
Conference with your client to determine what role you will each have during the mediation, discussing who will be responsible for what issues or statements. It may be helpful to develop a signal with the client to indicate who will respond to a question, or to show desire for caucus, etc.
Also, work with your client to express the importance of taking a hard on issues, soft on people approach to encourage a more productive conversation.
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The Client Preparation Checklist below provides a more detailed delineation of some of the key elements of client preparation.
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See "Role of the Attorney-Advocate" and "Working with the Mediator" for more information.
Preparation
Steps
Case preparation
1.
Mediation education
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Determination of preferred model
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Division of attorney-client responsibilities
2.
Pre-mediation conference
3.
Caucus
4.
Agreement counseling and follow-through
5.
What to Avoid: Common Errors
Wrong lawyer in the room
Wrong client in the room
Wrong mediator in the room
Omitting client preparation
Tailoring opening statement to mediator instead of opposing party
Failure to listen to other side
Failure to consider perception and motivation
Hurting, humiliating or threatening; Ultimatums
Too many people involved
Failure to close the deal
Lack of patience or perseverance
Source: Tom Arnold's " Twenty-One Common Mediation Errors, and How to Avoid Them", updated from "20 Common Errors in Mediation Advocacy"