Mediation can work when all parties are prepared and understand the goal of mediation. In so far as is possible, settlement should be reached with the benefit of information and transparency so as to ensure the best forum for understanding the issues involved, rather than having one party left in the dark and unable to make an informed decision.
Lawyers should prepare their clients for the process, underscore the importance of confidentiality, explaining that this is a chance to step away from or to avoid an adversarial court process.
Your client should be as prepared for the day of mediation, as for a day of discovery. The day of mediation may be the first time that opposing lawyers will meet your clients. A properly prepared and presented client may cause opposing lawyers and clients to re-evaluate their case, and sometimes re-evaluate what their clients have been saying about your client.
The client should be familiar with the process of a mediation: What will happen? When? Where? How long will the process last? What are the realistic expectations? What are the various potential outcomes? What if settlement is achieved, next steps? What if settlement is not achieved, next steps?
Explain the confidential nature of the mediation and remind clients of Rule 75.1.11 and Rule 75.2.08 (for court-ordered mediations) which state that “[a]ll communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice settlement discussions.”
Clients need to be assured that anything that is said or admitted cannot be used against the client at a later stage. The fact that there is no public record of the proceeding may provide some clients with the comfort to say things that might otherwise not be said. In addition, clients can be advised that any information a client provides to the mediator to help the mediator understand their position better can remain confidential and that the mediator will not disclose any information unless expressly authorized by the clients.
Having the opportunity to participate in open and frank discussions may be the key to resolving outstanding issues that might otherwise be addressed in the litigation process.
Often estate mediations will take a full day, or several days. The client should be prepared to spend significant time at the mediation.
Explain the mediation retainer to your client, the costs of the mediator, the costs of lawyers and how and by whom, the mediator will be paid.
Clients should be prepared to be respectful of the process, to disengage the anger and entrenched views, depart from using blaming language and adopt neutral language, all with a view to compromise.
Rarely will a party leave with everything that is wanted, and be completely satisfied.
Sometimes in estate mediation there are non-parties who may have influence over whether a settlement will happen or not (other family members, relatives, spouses, friends etc.). Consider having these individuals attend the mediation with your client. At the very least, consider having that individual available by phone.
Explain the negotiation process. Prepare your client for the likelihood that an opening offer from the other side will not be close to what your client is expecting. Manage client expectations. Be direct in advising clients on realistic expectations of the day (even if your client may not want to hear your views).
Sometimes estate mediations fall apart over what seems to be inexpensive or insignificant items. Often it is the emotional connection to such items that prevents parties from reaching resolution. Consider preparing a list in advance of the items the client really wants and have a conversation with the client about the expectations of receiving those items and whether an accurate valuation of the items should be obtained in advance.
Steering your clients away from the emotional aspects and towards the financial implications of continued litigation assists the clients in moving past those types of difficulties
Lawyers should also prepare themselves for mediation as though they were preparing for trial or for discovery. Since mediation usually occurs early in the litigation, sometimes lawyers have not fully researched the nature and extent of the client’s case, in the same way the lawyer would have done by discovery or trial.
Also, lawyers must remember their duty to encourage settlement as set out in Rule 3.2-4 of the Rules of Professional Conduct. Rule 3.2-4 “Encouraging Compromise or Settlement” states: “A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing or continuing useless legal proceedings.”
Lawyers must also communicate to their clients that a mediation may be but a ‘fishing expedition’ for the opposing party, and in that event, will not likely result in a settlement.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.