Preparing Your Client for the Mediation: The Pre-Mediation Meeting(s)

We saved the best for last: pre-mediation client meeting(s). One or multiple meetings, a quick phone call or multiple day prep session. Each case, each client, is different.

Your goal in every case: get your client in the best possible headspace to reasonably evaluate resolution.

Explain what to expect, talk through valuations, prepare for mediator requests, and always ask them what they’d like to know, what worries them. Eliminate any mystery.

What to Expect From Mediation Day

What’s routine to you is alien to your client. Cover the basics: who the mediator is, how you predict the day will go, and the common sense that’s often forgotten and leaves during a long mediation.

Mediator’s Role

The mediator isn’t the decider. No express authority. No power to force settlement, make legal decisions, or factual findings. We deal in soft power. Review proposal types: hard numbers, brackets, ranges, mediator proposals. This overview, even if obvious to you, will make mediation day more productive.

Logistics

What to wear, how to address the mediator, what to bring.

If you’re remote, confirm your client has:

·       A quiet, distraction free space

·       Reliable internet

·       A large enough screen to review documents

·       Decent audio

·       Updated software

·       Comfort with the platform

If any of those are missing, consider: would they be better off coming to your office for the mediation?

If you’re in person, make sure your client knows:

·       Where the mediation is and how they’ll be there

·       A parking or rideshare plan

·       Whether you’ll be meeting for breakfast to review last minute questions

Cover basic logistics with your client, it will give them a sense of control and help approach the mediation day with less stress.

The Day’s Flow

Ideally, you’ve spoken with your mediator in advance. If you have, you’ll know if there will be a joint session, who the mediator will speak with first, and how the mediator runs their mediations.

Even if you haven’t, mediations typically follow a predictable arc:

1.       Facts

2.       Damages and valuations

3.       Hard Dollars

Inoculate your client against the “insulting” first offer. Parties love to drop ridiculous anchors, often just as performative toughness. It is common theater. Mediators try to stop it, but you must prepare your client for it. As a mediator once told me, “I don’t care where you start, I care where you end up.”

And most importantly, tell your client to bring water, stay hydrated, and be prepared for a long day. Take breaks. Go for a walk. Do air squats. Whatever your client needs to do to keep themselves focused when the mediator is back in the room.  

Valuations: The Hard Conversation

Every mediation transitions from talking about facts, to talking about value. It’s always awkward. Prepare your client for that moment.

Every attorney values cases differently, relying on different factors and their own experience.

The Market is Real

Value cases using methods you may not like. I’ve heard attorneys on both sides complain that “market value” shouldn’t exit or be mentioned.

Markets to value legal cases exist. Especially in PAGA and Class Cases. Especially in high volume of cases invoking the same laws. Especially where judgement data and trial data exist.

Hate it, judge it; just don’t ignore it.

Not every case settles for “market value.” But if you don’t understand the market for a generic version of your case, you are doing your client a disservice. Market knowledge informs how the other side, especially insurers, will initially value the claim. Understanding the market also helps you explain why your case isn’t generic.

Case Specifics

Then bring it back to your case.

What injuries? What Treatment? What medical costs? How long out of work?

Quantifying these damages, especially the hard dollar values, will move the needle in both rooms.

For wage and hour matters, this means math:

·       Number of workweeks

·       Pay Periods

·       Hours

·       Regular rate (calculated correctly)

·       Labor Code Violations

·       Class Members

·       PAGA Members.

The Other Side

Think through how the other side values your case. Put yourself in an adjustor’s mind. Put your adjustor in the plaintiff’s shoes. Walk your client through expected opposing arguments.

BATNA: The Cost of “No”

Discuss the Best Alternative to a Negotiated Agreement (BATNA). What do the next 3, 6, 9 months look like without resolution? What discovery comes next? What time investment? Defense counsel: give your client a ballpark budget. And give them time to socialize those costs.

The “Bottom Line” Trap

Then the age-old “bottom line” question. It’s a pure style choice whether to bring it up at all and then whether to ask for it.

Defense or plaintiff, I never liked asking for bottom lines pre-mediation. I wanted clients with open minds, maybe an opening move or two, but otherwise prepared to let the day unfold. The mediation day will be fluid, and I never liked a client’s pre-determined “hard line” to disrupt that fluidity.

I also disliked having targets to aim at. As in-house counsel, I rarely disclosed my full authority or a bottom line.

Defense Specific: Request Authority Early

This doesn’t mean you skip authority requests. Defense counsel must ask. But there’s a difference between requesting authority and demanding a pre-determined bottom line.

Create your own case model. Present settlement ranges. Analyze likelihood within each range. Discuss trial outcomes and costs. Then request authority.

For significant cases, give your client contact more time you think necessary. Many lawyers don’t understand how authority gets approved. Decision-makers may meet weekly, monthly, or even quarterly. Don’t (please don’t) spring authority requests on them days before the mediation. Unless you want to get fired.

For material authority requests, ask, early and often, what your client contact will need to present to obtain material authority. This will be more labor intensive and require heightened scrutiny. Be prepared and give even more time.

For all authority requests, ensure finance isn’t accruing reserves in discoverable ways.

Mediator Requests and Client Questions

Maybe your mediator is a funny one, like me, that will give you pre-mediation homework. Maybe they have specific questions they’ve told you that they’ll be asking your client. Go over any mediator specific requests with your client so they won’t be surprised.

By this point, you’ll have done a lot of talking. Ask your client what questions they may have. Make sure you’ve built in a day or seven to process all the information you’ve given them. Check in before the mediation to make sure they’re as ready as they can be. Try to get them to feel like they’ll be in control on the mediation day.

The Purpose

Talk to your client before the mediation.

Remove the mystery.

Get them in the best headspace for reasoned decisions – before the mediation begins.

As we head into the new year, I’ll be taking a few weeks off. When we return, we’ll start discussing the mediation day itself.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.